United States v. Jairo Arciniegas Rodriguez

280 F. App'x 920
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 6, 2008
Docket07-15070
StatusUnpublished

This text of 280 F. App'x 920 (United States v. Jairo Arciniegas Rodriguez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jairo Arciniegas Rodriguez, 280 F. App'x 920 (11th Cir. 2008).

Opinion

PER CURIAM:

Jairo Arciniegas Rodriguez appeals his 70-month total sentence for (1) conspiracy to import one kilogram or more of a mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 952(a) and 963; (2) importation of heroin, in violation of 21 U.S.C. § 952(a); (3) conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and (4) possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). For the reasons set forth below, we affirm.

I.

Rodriguez first argues that the district court did not meaningfully consider the § 3553(a) factors and failed to adequately explain his sentence. He argues that a district court’s statement that it has considered the factors is not sufficient.

When the district court “affords a defendant an opportunity to object after the imposition of sentence, and he fails to do so, any objections to the sentence are barred absent manifest injustice,” United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir.1998) (per curiam), and we equate “the manifest injustice inquiry with review for plain error.” Id.

When reviewing a sentence, we must first determine that the “district court committed no significant procedural error, such as ... failing to consider the § 3553(a) factors ... or failing to adequately explain the chosen sentence....” Gall v. United States, — U.S.-, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The district court is not required, however, to either state on the record that it has explicitly considered each of the § 3553(a) factors, or discuss each factor. United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005) (per curiam). Rather, “an acknowledgment by the district court that it has considered the defendant’s arguments and the factors in section 3553(a) is sufficient under Booker." 1 Id. Furthermore, “[wjhen sentencing within the advisory Guidelines range, the district court is not required to give a lengthy explanation for its sentence” in the typical case. United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir.2008).

Here, the district court did not plainly err in determining Rodriguez’s sentence. The district court gave Rodriguez an opportunity to object to the final sentence, but Rodriguez made no objections. Moreover, the district court stated at sentencing that it had considered the statements of the parties, the presentence report containing the advisory guidelines, and the statutory factors. Thus, because the sentence was within the Guidelines range, the district court was not required to provide a more detailed explanation for why it imposed the sentence it did. Talley, 431 F.3d at 786. Accordingly, Rodriguez’s arguments have no merit.

II.

Rodriguez next argues that the district court procedurally erred by truncating the sentencing hearing. As a result of the district court’s action, he contends, his attorney could not argue additional factors for downward departure, such as a U.S.S.G. § 5K2.12 departure for duress. Additionally, he asserts that the district court (1) was distracted by the actions and poor performance of his counsel at sen- *922 tending; (2) failed to consider his severe health problems and did not allow counsel to argue for a lesser sentence on account of his health; and (3) truncated his opportunity to argue for a minor role reduction.

Rodriguez failed to object to the alleged truncation of the sentencing hearing and did not preserve this procedural issue for appeal. Therefore, we will review only for plain error. See Mahique, 150 F.3d at 1332.

The burden is on the defendant to offer evidence at sentencing on an issue that would reduce his offense level, and if he fails to do so and other evidence does not demonstrate entitlement, the defendant has not met his burden, and we will affirm the district court finding. See United States v. Wilson, 884 F.2d 1355, 1356-57 (11th Cir.1989) (holding defendant failed to meet burden for acceptance of responsibility reduction where he objected in the PSI, but only made arguments at sentencing without offering evidence). Furthermore, we have held that “[e]xcept in the rare instance when the record is sufficiently developed, we will not address claims for ineffective assistance of counsel on direct appeal,” United States v. Merrill, 513 F.3d 1293, 1308 (11th Cir.2008) (internal quotation marks omitted), because the preferred context for such a claim is a collateral proceeding under 18 U.S.C. § 2255. Massaro v. United States, 538 U.S. 500, 504, 508, 123 S.Ct. 1690, 1694, 1696, 155 L.Ed.2d 714 (2003).

The district court did not err, much less plainly err, in the way it handled the sentencing hearing. In Gall, the Supreme Court explained that there is no procedural error where, among other things, the district court allows “both parties to present arguments as to what they believed the appropriate sentence should be” during the sentencing hearing. Gall, 128 S.Ct. at 598. Rodriguez raised the issues of the role reduction and his health during the sentencing hearing, but offered no additional evidence. Moreover, there is no evidence in the record that the district court refused to consider the claims. As to the newly raised claim of a downward departure under U.S.S.G. § 5K2.12, Rodriguez had ample opportunity to raise such a claim below, but he did not. And finally, the record is not sufficiently developed for us to address an ineffective assistance of counsel claim at this time.

Accordingly, Rodriguez’s claims concerning the truncation of the sentencing hearing are meritless.

III.

Finally, Rodriguez argues the district court incorrectly denied him a minor role reduction. He argues that he was entitled to a minor role reduction because one was granted to a co-defendant, he allegedly committed the crime because his son had been kidnapped, and the government failed to present evidence contradicting his claim.

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Related

United States v. Mahique
150 F.3d 1330 (Eleventh Circuit, 1998)
United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Merrill
513 F.3d 1293 (Eleventh Circuit, 2008)
Massaro v. United States
538 U.S. 500 (Supreme Court, 2003)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. John Wilson
884 F.2d 1355 (Eleventh Circuit, 1989)
United States v. Isabel Rodriguez De Varon
175 F.3d 930 (Eleventh Circuit, 1999)
United States v. Livesay
525 F.3d 1081 (Eleventh Circuit, 2008)

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Bluebook (online)
280 F. App'x 920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jairo-arciniegas-rodriguez-ca11-2008.