United States v. Jose Rebolledo-Estupinan

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 1, 2021
• Docket: 20-14173
• Status: Unpublished

Opinion

USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 1 of 10

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 20-14173 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE REBOLLEDO-ESTUPINAN,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:20-cr-00074-WFJ-AEP-1 ____________________ USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 2 of 10

2 Opinion of the Court 20-14173

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges. PER CURIAM: Jose Rebolledo-Estupinan challenges the revocation of his supervised release and the resulting 60-month sentence of impris- onment. He raises three arguments on appeal. First, the district court plainly erred in holding him accountable under the terms of his supervised release after he was deported. Second, the condi- tions of his supervised release were waived upon his deportation from the United States. Third, the district court abused its discre- tion when it applied an upward variance, improperly weighed the factors under 18 U.S.C. § 3553(a), and gave him a substantively un- reasonable sentence. On the other hand, the government contends that he invited any error with respect to the revocation of his su- pervised release and that his sentence was reasonable. I. In 2005, Rebolledo-Estupinan was convicted of two drug-re- lated offenses and sentenced to a total of 168 months’ imprison- ment, a downward variance from the Sentencing Guidelines range, followed by 5 years on supervised release. In April 2016, he was released, and his supervised release period commenced. It in- cluded mandatory conditions such as a prohibition against “com- mit[ting] another federal, state or local crime” and “illegally pos- sess[ing] a controlled substance.” It also contained a special condi- tion of his supervision that “supervision is waived upon deporta- tion.” USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 3 of 10

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In October 2019, American law enforcement officials inter- cepted and boarded a semi-submersible vessel suspected of smug- gling drugs in international waters off the coast of Guatemala. The vessel was subjected to the United States’ jurisdiction, and law en- forcement found aboard Rebolledo-Estupinan, who served as the mechanic of the vessel, and three other crew members. The en- forcement officials’ search of the boat uncovered 100 bales of co- caine that weighed 2,295 kilograms. In November 2019, Re- bolledo-Estupinan was sentenced to 240 months’ imprisonment, a downward variance from the calculated guideline range of 262 to 327 months, to be served consecutively with whatever sentence was later imposed at the supervised release revocation proceed- ings. In 2020, at the supervised release revocation hearing, Re- bolledo-Estupinan pled guilty to all three charges set forth in the revocation petition, and the district court found him guilty. Re- bolledo-Estupinan argued that he became involved in the drug op- eration because the individuals who hired him appeared to be threatening his family. He also stated that he could not find other work when he was released from prison in 2019. The district court, considering Rebolledo-Estupinan’s criminal history, his “very so- phisticated part” of the drug operation, and his use of mechanic skills that he learned during prison to further the drug operation, applied a § 3553(a) upward variance and therefore sentenced Re- bolledo-Estupinan to 60 months’ imprisonment to be served con- secutively with his sentence for the drug offenses. USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 4 of 10

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II. Generally, we review a district court’s revocation of super- vised release for abuse of discretion. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). However, when there is no objection in the district court, we review such issues for plain error. United States v. Parrish, 427 F.3d 1345, 1347 (11th Cir. 2005) (per curiam); Fed. R. Crim. P. 52(b). Under plain error review, the de- fendant has the burden to show that “there is (1) error (2) that is plain and (3) that affects substantial rights.” United States v. Mon- roe, 353 F.3d 1346, 1349 (11th Cir. 2003) (internal quotation marks omitted and alteration adopted). “If all three conditions are met, an appellate court may then exercise its discretion to notice a for- feited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (inter- nal quotation marks omitted and alteration adopted). A defend- ant’s substantial rights are impacted when the district court’s error affected the outcome of the proceedings below. United States v. Flanders, 752 F.3d 1317, 1333 (11th Cir. 2014). “When the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it.” United States v. Kushmaul, 984 F.3d 1359, 1363 (11th Cir. 2021) (per curiam). After considering certain factors under 18 U.S.C. § 3553(a), a district court may revoke a defendant’s supervised release if it finds by a preponderance of the evidence that the defendant violated the terms of his release. 18 U.S.C. § 3583(e)(3). The district court may USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 5 of 10

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require the defendant to serve in prison the entire term of super- vised release, up to five years for class A felonies, without crediting him for time that he already served on supervised release. Id. A mandatory condition of any federal defendant’s supervised release is that the defendant must not commit further crimes while on re- lease. Id. § 3583(d). Neither we nor the Supreme Court have interpreted the meaning of “supervision” in the context of whether the conditions of supervision apply when a judgment states that supervision is “waived” upon deportation. However, we have held that, if the provisions of supervised release require a defendant to remain out- side the United States, the district court cannot toll the defendant’s conditions of release while the defendant is outside the country be- cause “a defendant [cannot] be excluded from the United States as a condition of supervised release while, at the same time . . . all conditions of supervised release [are] suspended for the duration of that exclusion.” United States v. Okoko, 365 F.3d 962, 966 (11th Cir. 2004) (emphasis in original). On appeal, Rebolledo-Estupinan argues that the language of his 2005 judgment shows that he was not subject to the conditions of his release post-deportation. He admits that he committed the offenses of which he is accused, but he contends that: the district court “waived” his supervision upon his deportation. To “waive” something means to not enforce it; and thus, he was not subject to the conditions of his supervised release after he was deported. He acknowledges that his claim will be reviewed for plain error but USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 6 of 10

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contends that the district court plainly erred based on the language of the judgment. He contends that this error impacted his substan- tial rights because he received a five-year prison sentence as a result and that this unnecessary deprivation of liberty satisfies the plain error requirement that an error undermines the fairness or integ- rity of the process. Upon review, Rebolledo-Estupinan’s claim fails because he has not shown that the district court erred or that any error was plain. The judgment itself does not make it plain that “supervision waived upon deportation” meant both that (1) the terms of Re- bolledo-Estupinan’s supervision were waived, not just the act of supervising him, and (2) the waiver included all of the conditions of release, including those made mandatory by statute, such as the bar on committing further crimes. Because neither the Supreme Court nor we have stated that “supervision” in this context in- cludes all of the conditions of supervision and that such a clause waives all other terms of release, the district court did not plainly err. II. We review a sentence’s reasonableness for abuse of discre- tion, regardless of whether that sentence falls inside or outside of the guideline range. Gall v. United States, 552 U.S. 38, 51 (2007). “The party challenging a sentence has the burden of showing that the sentence is unreasonable in light of the entire record, the § 3553(a) factors, and the substantial deference afforded sentencing courts.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 7 of 10

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2010). Under this standard, we may affirm a sentence even though we would have imposed a different sentence had we been in the district court’s position. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). A sentence is substantively unreasonable only when the dis- trict court “(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an im- proper or irrelevant factor, or (3) commits a clear error of judg- ment in considering the proper factors.” United States v. Taylor, 997 F.3d 1348, 1355 (11th Cir. 2021) (per curiam). We “commit[] to the sound discretion of the district court the weight to be ac- corded to each § 3553(a) factor,” United States v. Perkins, 787 F.3d 1329, 1342 (11th Cir. 2015), and the district court is “permitted to attach great weight to one factor over others,” United States v. Ri- ley, 995 F.3d 1272, 1279 (11th Cir. 2021) (internal quotation marks omitted). We will vacate a district court’s sentence “only if we are left with the ‘definite and firm’ conviction that the district court com- mitted a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that is outside the range of reasonable sen- tences dictated by the facts of the case.” United States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020) (quoting Irey, 612 F.3d at 1190). “We do not presume that a sentence outside the guideline range is unreasonable and must give due deference to the district court’s decision that the § 3553(a) factors, as a whole, justify the extent of the variance.” Id. USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 8 of 10

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Section § 3553(a)’s “overarching” instruction to sentencing courts is that any sentence, whether within the Guidelines range or through a variance, must be sufficient but not greater than neces- sary to comply with the purposes listed in § 3553(a)(2). Kimbrough v. United States, 552 U.S. 85, 101 (2007); see also Gall, 552 U.S. at 51 (stating that whether a sentence falls inside or outside the Guide- lines range, the district court must consider the § 3553(a) factors). When imposing a sentence upon revocation of supervised release, the district court considers the following § 3553(a) factors: the na- ture and circumstances of the offense; the defendant’s history and characteristics; the sentences available and relevant sentencing range; the need to deter criminal conduct, protect the public, pro- vide the defendant with training or other correctional treatment, avoid disparities between defendants, and provide for restitution; and any pertinent policy statements. 18 U.S.C. §§ 3583(e)(3), 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7). The district court is not re- quired to explicitly address each of the § 3553(a) factors or all of the mitigating evidence. United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). Rebolledo-Estupinan argues that the district court abused its discretion by committing a clear error of judgment in weighing cer- tain 18 U.S.C. § 3553(a) factors, resulting in a substantively unrea- sonable sentence. He further asserts that it gave too much weight to his being a mechanic on the boat where he was found, receiving training on trucks and engines, participating in two offenses with large amounts of illegal drugs, and illegally possessing a cell phone USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 9 of 10

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while he was in prison. He states that the district court failed to consider the totality of the circumstances such as his overall good behavior in prison, taking classes while incarcerated, and cooperat- ing with the prosecution. The district court did not abuse its discretion and impose a substantively unreasonable sentence when it varied upward from the guideline range because the court did not fail to consider rele- vant factors, did not give significant weight to an improper factor, and did not clearly err in considering proper factors. Taylor, 997 F.3d at 1355. In determining that the guideline range was not suf- ficient, the court considered several § 3553(a) factors, including the seriousness of the offense, which involved a substantial amount of drugs, and his failure to be deterred by his original sentence that had been the result of a downward variance. Although Rebolledo-Estupinan contends that, in discussing his cell phone infraction while in prison, the district court failed to weigh that fact in light of other mitigating evidence, such as taking classes while incarcerated, the district court was not required to discuss all the mitigating evidence at the hearing. See Amedeo, 487 F.3d at 833. Further, contrary to his arguments on appeal, the dis- trict court was entitled to consider his role in the offense as the ship’s mechanic and the use of his special skills during the offense as part of its evaluation of the relevant § 3553(a) factors. Tome, 611 F.3d at 1378. Finally, although Rebolledo-Estupinan argues that he committed his crimes out of fear of violence, there is no record ev- idence to support that proposition. Accordingly, we affirm. USCA11 Case: 20-14173 Date Filed: 12/01/2021 Page: 10 of 10

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AFFIRMED.