United States v. Jose Ricardo Lerma Sinisterra

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 1, 2021
• Docket: 20-13412
• Status: Unpublished

Opinion

USCA11 Case: 20-13412 Date Filed: 12/01/2021 Page: 1 of 9

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 20-13412 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE RICARDO LERMA SINISTERRA,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:08-cr-00221-SDM-MAP-5 ____________________ USCA11 Case: 20-13412 Date Filed: 12/01/2021 Page: 2 of 9

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Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.

PER CURIAM:

Jose Ricardo Lerma Sinisterra appeals the 30-month sen- tence imposed -- pursuant to 18 U.S.C. § 3583(e)(3) -- upon revoca- tion of Sinisterra’s supervised release. Sinisterra contends that his sentence is procedurally and substantively unreasonable. No re- versible error has been shown; we affirm. In 2008, the United States Coast Guard apprehended Sinis- terra and 7 other crewmembers found aboard a fishing boat carry- ing 1,140 kilograms of cocaine. Sinisterra pleaded guilty to conspir- acy to possess and to possession with intent to distribute five kilo- grams or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a) and (b), and 21 U.S.C. § 906(b)(1)(B)(ii). Sinis- terra was sentenced to 135 months’ imprisonment, followed by 5 years’ supervised release. Sinisterra completed the in-custody portion of this sentence in June 2018. Upon Sinisterra’s release from custody, Sinisterra was deported to Colombia. Sinisterra was never supervised actively in the United States. In July 2019, a probation officer petitioned the district court to revoke Sinisterra’s supervised release: revocation based on new USCA11 Case: 20-13412 Date Filed: 12/01/2021 Page: 3 of 9

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criminal conduct. For grounds, the probation officer alleged that Sinisterra had been charged, in the United States District Court for the Southern District of Florida, with two new criminal offenses (“2019 Case”). The offenses charged in the separate 2019 Case arose from a June 2019 encounter during which Sinisterra was apprehended for a second time by the Coast Guard -- this time aboard a semi-sub- mersible vessel carrying 1,377 kilograms of cocaine. In the 2019 Case, Sinisterra pleaded guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States and also to conspiracy to operate and embark on a semi-submersible vessel without nationality. For these crimes, Sinisterra was sentenced to 210 months’ imprisonment, followed by 5 years’ supervised re- lease. At the revocation hearing at issue in this appeal, Sinisterra admitted the charged supervised-release violations. The district court revoked the term of supervised release imposed for Sinis- terra’s 2008 offenses. The district court then sentenced Sinisterra to 30 months’ imprisonment to run consecutive to the 210-month sentence imposed in the 2019 Case. Under section 3583(e)(3), a district court may revoke a term of supervised release upon finding by a preponderance of the evi- dence that the defendant violated a supervised-release condition. 18 U.S.C. § 3583(e). The district court may then impose a term of imprisonment after considering the sentencing factors identified in USCA11 Case: 20-13412 Date Filed: 12/01/2021 Page: 4 of 9

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section 3583(e). Id. Section 3583(e) lists most -- but not all -- of the sentencing factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. §§ 3553(a), 3583(e). Under section 3583(e), a district court imposing a sentence upon revocation of supervised release must consider these sentenc- ing factors: (1) the nature and circumstances of the offense, (2) the defendant’s history and characteristics, (3) the need for the sen- tence to deter criminal conduct and to protect the public, (4) the need to provide the defendant with educational training or medical care, (5) the advisory guidelines range, (6) the policy statements of the Sentencing Commission, (7) the need to avoid sentencing dis- parities, and (8) the need to provide restitution to victims. See 18 U.S.C. § 3583(e) (requiring the sentencing court to consider the sen- tencing factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), and in (a)(4)-(7)). Pertinent to this appeal, section 3583(e) omits refer- ence to the sentencing factors set out in section 3553(a)(2)(A): “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punish- ment for the offense.” See 18 U.S.C. §§ 3553(a)(2)(A), 3583(e). We review for reasonableness a sentence imposed upon rev- ocation of supervised release. See United States v. Velasquez Ve- lasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). We review the rea- sonableness of a sentence under an abuse-of-discretion standard us- ing a two-step process. See United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2016). We first determine whether the district court committed a significant procedural error. Id. If the sentence is USCA11 Case: 20-13412 Date Filed: 12/01/2021 Page: 5 of 9

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procedurally sound, we next determine whether the sentence is substantively reasonable given the totality of the circumstances. Id. The party challenging the reasonableness of the sentence bears the burden of establishing that the sentence is unreasonable. United States v. Trailer, 827 F.3d 933, 936 (11th Cir. 2016). We will disturb a sentence only “if we are left with the definite and firm conviction that the district court committed a clear error of judg- ment in weighing the [sentencing] factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” Id. Sinisterra’s 30-month consecutive sentence is both proce- durally and substantively reasonable. About procedural reasona- bleness, the district court calculated properly the advisory guide- lines range of 24 to 30 months’ imprisonment. The district court also considered the pertinent sentencing factors identified in sec- tion 3583(e) and explained adequately the chosen sentence. The district court’s decision to impose a sentence consecutive to Sinis- terra’s 210-month sentence in the 2019 Case was also consistent with the Chapter 7 policy statements. See U.S.S.G. § 7B1.3(f), com- ment. (n.4) (providing that a “term of imprisonment imposed upon the revocation of . . . supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the de- fendant is serving . . ..” (emphasis added)). On appeal, Sinesterra contends the district court committed procedural error by considering impermissibly the “retribution” USCA11 Case: 20-13412 Date Filed: 12/01/2021 Page: 6 of 9

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factors under section 3553(a)(2)(A): sentencing factors omitted from section 3583(e)’s list of factors to be considered in imposing a revocation sentence.1 We disagree. Nothing evidences that the district court relied upon the sen- tencing factors listed in section 3553(a)(2)(A). In explaining the chosen sentence, the district court discussed the “egregious” nature of Sinisterra’s new offense conduct and observed that -- shortly af- ter Sinisterra was released from custody -- Sinisterra committed the same crime on an “escalated level.” The district court also focused on the need to protect the public from future crimes and consid- ered expressly the sentences of similarly-situated defendants. These statements by the district court address directly the sentenc- ing factors identified in section 3583(e), including the nature and circumstances of the offense, Sinisterra’s history and characteris- tics, and the need for the sentence to deter criminal conduct and to protect the public. See 18 U.S.C. § 3583(e). On this record, we have no reason to believe that the district court relied upon a

1 The government contends that Sinisterra’s procedural-reasonableness argu- ment should be reviewed only for plain error. The government says that Sin- isterra’s general objection to the procedural reasonableness of his sentence was inadequate to preserve for appeal Sinisterra’s argument that the district court considered an impermissible sentencing factor. Because we conclude that the district court committed no procedural error -- plain or otherwise -- we need not address the adequacy of Sinisterra’s objection following the dis- trict court’s imposition of sentence. USCA11 Case: 20-13412 Date Filed: 12/01/2021 Page: 7 of 9

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sentencing factor outside the sentencing factors listed in section 3583(e). 2 About substantive reasonableness, Sinisterra argues that the district court gave undue weight to the serious nature of Sinis- terra’s 2019 criminal offenses and failed to focus on Sinisterra’s “breach of trust.” We stress that a district court has discretion to give greater weight to some sentencing factors than to others. See United States v. Gomez, 955 F.3d 1250, 1257 (11th Cir. 2020). That Sinis- terra violated the terms of his supervised release within one year of being released from custody and by committing the same offense for which he was convicted in 2008 is undisputed. This evidence is pertinent not only to the nature and circumstances of Sinisterra’s offense, but also to Sinisterra’s history and characteristics and to the need for the sentence imposed to protect the public and to de- ter criminal conduct. Given the record in this case, we cannot con- clude that the district court gave undue weight to the seriousness of Sinisterra’s 2019 offenses or clearly erred in weighing the perti- nent sentencing factors. We also reject Sinisterra’s argument about lack of consider- ation of “breach of trust.” As an initial matter, we note that

2 We also note that neither the Supreme Court nor this Court has resolved whether a sentencing court commits error by considering the section 3553(a)(2)(A) factors in imposing a sentence upon revocation. We do not de- cide that issue today. USCA11 Case: 20-13412 Date Filed: 12/01/2021 Page: 8 of 9

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Sinisterra seems to misconstrue the “breach of trust” language in Chapter 7’s policy statement. The policy statement explains that - - after considering two different approaches for sanctioning viola- tions of supervised release -- the Sentencing Commission’s adopted an approach that sanctioned chiefly the defendant’s “breach of trust” for failing to abide by the conditions of the court-ordered su- pervision, “while taking into account, to a limited degree, the seri- ousness of the underlying violation and the criminal history of the violator.” See U.S.S.G. Ch. 7, Pt. A, intro. comment. 3(b). Nothing in Chapter 7’s policy statement requires a sentencing court to con- sider as an independent sentencing factor a defendant’s “breach of trust.” Nevertheless, the record here shows that the district court did consider Sinisterra’s breach of trust. In announcing Sinisterra’s revocation sentence, the district court first quoted statements Sin- isterra made to the sentencing court during Sinisterra’s 2008 sen- tencing hearing, including Sinisterra’s statements apologizing to the sentencing court for Sinisterra’s wrongs and to his Lord and asking the sentencing court to consider Sinisterra’s children in im- posing a fair sentence. The district court, however, at the revoca- tion hearing, questioned the sincerity of Sinisterra’s statements of remorse -- which the sentencing court considered in 2008 -- given that Sinisterra committed a similar crime shortly after his release from custody. The district court also discussed Sinisterra’s earlier- filed motions for “extreme leniency” and said that Sinisterra’s com- mission of the 2019 criminal offenses confirmed the district court’s USCA11 Case: 20-13412 Date Filed: 12/01/2021 Page: 9 of 9

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earlier decision to deny such leniency. We read these statements by the district court as statements touching upon Sinisterra’s breach of the court’s trust. Given the totality of the circumstances involved in this case, the district court determined reasonably that on revocation a sen- tence at the high end of the guidelines range was appropriate. That Sinisterra’s 30-month sentence was both within the advisory guide- lines range of 24 to 30 months’ imprisonment and well below the statutory maximum sentence of 5 years is also indicative of reason- ableness. See United States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014). Viewing the record as a whole, we are not “left with the def- inite and firm conviction that the district court committed a clear error of judgment.” See Trailer, 827 F.3d at 936. The district court abused no discretion; we affirm Sinisterra’s sentence. AFFIRMED.