United States v. Hernandez-Casa

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 18, 2010
• Docket: 09-13385
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAR 18, 2010 Nos. 09-13380 and 09-13385 JOHN LEY Non-Argument Calendar CLERK ________________________

D. C. Docket Nos. 02-00593-CR-TWT-1 and 09-00212-CR-TWT-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CELSO HERNANDEZ-CASA,

Defendant-Appellant.

________________________

Appeals from the United States District Court for the Northern District of Georgia _________________________

(March 18, 2010)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

In this consolidated appeal, Celso Hernandez-Casa challenges the consecutive sentences imposed upon his conviction for illegal re-entry into the

United States after previously having been deported as an aggravated felon, in

violation of 8 U.S.C. § 1326(a) and (b)(2), and the revocation of the supervised

release he was serving at the time, pursuant to 18 U.S.C. § 3583(e)(3). Upon

review, we conclude the sentences imposed were reasonable and therefore affirm.

In 1997, Hernandez-Casa pleaded guilty in federal court to three counts of

drug-trafficking, received a 31-month sentence, and was subsequently deported. In

2002, however, he was arrested in Georgia and pleaded guilty to illegally re-

entering the United States after previously having been deported. He was

sentenced to 46 months’ imprisonment and 36 months’ supervised release. In

2006, Hernandez-Casa was released from custody and again deported.

In November 2008, Hernandez-Casa was arrested in Tennessee for driver’s

license violations. As a result, the district court approved a petition for an arrest

warrant and an order to show cause why Hernandez-Casa’s supervised release

should not be revoked. While the revocation case was pending, the government

filed an information charging Hernandez-Casa with illegal re-entry. Hernandez-

Casa waived his right to an indictment and pleaded guilty.1

With regard to Hernandez-Casa’s substantive offense of illegal re-entry, the

1 In addition to the arrest in Tennessee, Hernandez-Casa was arrested in Georgia for driver’s license violations and his supervised release violation warrant.

2 probation officer calculated the guidelines range as follows: Hernandez-Casa had a

base offense level of 8, with a 16-level enhancement for his previous aggravated

felony convictions, U.S.S.G. § 2L1.2(a) and (b)(1)(A)(i), and a 3-level reduction

for acceptance of responsibility, § 3E1.1, resulting in a total offense level of 21.

With a criminal history category of V, the advisory guidelines range was 70 to 87

months’ imprisonment. The statutory maximum term of imprisonment was 20

years. Hernandez-Casa made no objections to the calculations, but asserted that a

sentence below the guidelines range was appropriate under the 18 U.S.C. § 3553(a)

factors.

According to Hernandez-Casa, since his 2006 deportation, he had settled

himself in Mexico, had a job and family there, and was doing well. He had

returned to the United States only to take his mother back with him to Mexico so

that she could die in her home country, but he ended up staying in the United

States longer than planned because his mother became too ill to travel at that time.

At the sentencing and revocation hearing, the district court first addressed

Hernandez-Casa’s substantive offense, adopting the un-objected to guidelines

calculations. Hernandez-Casa asked the district court to sentence him to “time

served” so that he could be deported immediately to Mexico and be with his dying

mother. The government responded that Hernandez-Casa previously had been

3 deported twice for felony offenses, and yet he always returned to the United States.

The government requested a sentence near the middle of the guidelines range, to

run consecutively to the sentence imposed for Hernandez-Casa’s violation of his

supervised release.

Expressing “grave doubts” about Hernandez-Casa’s story, the district court

denied the request for a sentence below the guidelines range. The court explained

that, even if it believed the story, Hernandez-Casa had been deported on two

previous occasions and already had been convicted once of illegally re-entering the

United States. In the district court’s view, these were “aggravating factors”

indicating that a sentence below the guidelines range was not appropriate.

Accordingly, the district court sentenced Hernandez-Casa to 70 months’

imprisonment. The district court explained that it imposed the low-end sentence

because “the aggravating factors that exist in the case, specifically the Defendant’s

prior criminal conduct, have already been taken into consideration in the

calculation of the guidelines range.” The court also stated that the sentence

appropriately took into consideration the 18 U.S.C. § 3553(a) sentencing factors,

“specifically the nature and circumstances of the offense, the history and

characteristics of the Defendant, the need for the sentence imposed to reflect the

seriousness of the offense and the need to avoid unwarranted sentencing

4 disparities.” Hernandez-Casa objected to the district court’s denial of his motion

for a sentence below the guidelines range and to the district court’s sentence as

procedurally and substantively unreasonable.

The district court then addressed the revocation of Hernandez-Casa’s

supervised release. After Hernandez-Casa admitted the violation in the petition to

revoke his supervised release, the district court stated that it was a Grade B

violation and, with Hernandez-Casa’s original criminal history category of III, the

guidelines range was 8 to 14 months’ imprisonment. Hernandez-Casa did not

object to that guidelines calculation, but argued that his violation would have been

a Grade C violation but for the fact that he pleaded to the substantive offense

underlying it. He asked for a concurrent sentence because, even though the

Guidelines recommended a consecutive sentence, the Guidelines were not

mandatory and no additional conduct was alleged regarding his violation, other

than the substantive offense for which he had just been sentenced.

The district court sentenced Hernandez-Casa to 8 months’ imprisonment to

be served consecutively to the 70-month sentence already imposed. The district

court again explained that it sentenced Hernandez-Casa at the low-end of the

guidelines range because the guidelines range already reflected the aggravating

factors in the case. Hernandez-Casa raised the same objections he had raised

5 earlier. This appeal followed.2

We review the reasonableness of a sentence, including one imposed upon

revocation of supervised release, under a deferential abuse-of-discretion standard.

United States v. Jordan, 582 F.3d 1239, 1249 (11th Cir. 2009); United States v.

Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). Reasonableness review

involves a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.

2008). We first look at whether the district court committed any significant

procedural error, and then at whether the sentence is substantively reasonable

under the totality of the circumstances. Id.

A district court commits a significant procedural sentencing error if it, for

example, (1) improperly calculates the guidelines range; (2) treats the Guidelines

as mandatory; (3) fails to consider the 18 U.S.C. § 3553(a) sentencing factors;

(4) selects a sentence based on clearly erroneous facts; or (5) fails to explain the

chosen sentence adequately. Gall v. United States, 552 U.S. 38, 51 (2007).

If there is no procedural error, we then review the substantive

reasonableness of the sentence. Id. at 51. “[T]he party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable.”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A sentence is

2 After Hernandez-Casa filed a notice of appeal from both sentences, this court granted his unopposed motion to consolidate the two cases on appeal.

6 substantively unreasonable if, under the totality of the circumstances, it fails to

achieve the purposes of sentencing listed in § 3553(a). Pugh, 515 F.3d at 1191.

“The weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th

Cir. 2007) (quotations and alterations omitted). Moreover, we expect that a

sentence imposed within the advisory guidelines range is substantively reasonable.

Talley, 431 F.3d at 788.

With regard to revocation, after considering the relevant factors in § 3553(a),

the district court may revoke a term of supervised release and impose a sentence of

imprisonment if it “finds by a preponderance of the evidence that the defendant

violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). Upon

revocation, the district court may “require the defendant to serve in prison all or

part of the term of supervised release authorized by statute . . . without credit for

time previously served on postrelease supervision.” 18 U.S.C. § 3583(e)(3).

With regard to imposition of a consecutive sentence, “if a term of

imprisonment is imposed on a defendant who is already subject to an undischarged

term of imprisonment, the terms may run concurrently or consecutively.” 18

U.S.C. § 3584(a). “[I]n determining whether the terms imposed are to be ordered

7 to run concurrently or consecutively, [the district court] shall consider . . . the

factors set forth in section 3553(a).” 18 U.S.C. § 3584(b). These provisions apply

to imprisonment terms following revocation of supervised release. United States v.

Quinones, 136 F.3d 1293, 1294-95 (11th Cir. 1998). Moreover, although U.S.S.G.

§ 7B1.3(f) is not binding, this guideline recommends that any term of

imprisonment imposed upon revocation of supervised release be made consecutive,

even if “the sentence of imprisonment being served resulted from the conduct that

is the basis of the revocation of . . . supervised release.” See United States v. Silva,

443 F.3d 795, 799 (11th Cir. 2006) (“While the district court is required to

consider the policy statements [of Chapter 7], it is not bound by them.”).

Based on a review of the record and the parties’ briefs, we conclude that

Hernandez-Casa’s sentences were procedurally and substantively reasonable.

First, the district court did not commit any procedural sentencing error. The court

correctly calculated the guideline ranges and treated the guidelines as advisory.

The court also consider the § 3553(a) factors and explained its reasoning in

imposing the specific sentences.

Second, both sentences were imposed at the low-end of the applicable

advisory guidelines ranges and were well below the statutory maximum terms of

imprisonment. Hernandez-Casa has not shown that the sentences were otherwise

8 substantively unreasonable. As a result, we

AFFIRM.