United States v. Kumar Sahadeo

663 F. App'x 770
Court of Appeals for the Eleventh Circuit·Decided September 28, 2016·No. 15-14140·Unpublished

Opinion

PER CURIAM:

Defendant Kumar Sahadeo appeals his 27-month sentence, imposed after he pleaded guilty to illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Defendant argues that his sentence is substantively unreasonable in light of the 18 U.S.C. § 3553(a) factors. He further asserts that the district court unreasonably denied his motion for a downward variance. After careful review, we affirm.

I. BACKGROUND

In June 2014, Defendant, a native and citizen of Guyana, was removed from the United States. Defendant was later arrested in Florida in March 2015 in connection with an alien smuggling investigation. Following his arrest, Defendant admitted that he had been deported twice previously: in 1999 and 2014.

Defendant subsequently pleaded guilty to one count of illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2). The Presentence Investigation Report (“PSR”) assigned Defendant a base offense level of 8, pursuant to U.S.S.G. § 2L1.2(a). Defendant received a 12-level enhancement under § 2L1.2(b)(l)(A)(ii) because he was previously deported after two convictions for crimes of violence that did not receive any criminal history points. With a two-level reduction for acceptance of responsibility, Defendant’s total offense level was 18. Based on a total offense level of 18 and a criminal history category of I, Defendant’s guideline range was 27 to 33 months’ imprisonment.

Defendant filed a motion for a downward variance. He asserted that the § 3553(a) factors supported a downward variance because he had a tough childhood, he was an “avid father,” and his prison sentence would be more severe due to his status as a non-citizen.

At sentencing, the district court addressed Defendant’s challenge to the Government’s decision not to move for an additional one-point reduction for acceptance of responsibility under U.S.S.G. *772 § 3El.l(b). Defendant argued that he was being penalized for having exercised his right to consult an immigration attorney before pleading guilty. The Government responded that it did not move for the additional one-point reduction because it had spent significant effort preparing for trial, as Defendant did not inform the Government of his intentions to plead guilty until the week of trial. The district court overruled Defendant’s objection.

Defendant then renewed his request for a downward variance based on his tough upbringing and the disadvantages he would face in prison because he was not a U.S. citizen. Citing the § 3558(a) factors, the district court denied Defendant’s request for a downward variance. The district court consequently sentenced Defendant to 27 months’ imprisonment.

II. DISCUSSION

Using a two-step process, we review the reasonableness of a district court’s sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th Cir.), cert. denied, — U.S.—, 135 S.Ct. 764, 190 L.Ed.2d 636 (2014). We first look to whether the district court committed any procedural error, and then we examine whether the sentence is substantively reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. 1 Id. The party challenging the sentence bears the burden of showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008). We will only vacate a defendant’s sentence if we are “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (quotation omitted).

Here, Defendant has not shown that his sentence is substantively unreasonable. At the outset, we expect Defendant’s 27-month sentence—which is at the low end of the advisory guideline range— to be reasonable. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (“Although we do not automatically presume a sentence within the guidelines range is reasonable we ... expect a sentence within the Guidelines range to be reasonable.” (quotation omitted)). Moreover, his 27-month sentence was well below the 20-year statutory maximum sentence under 8 U.S.C. § 1326(b)(2). See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (suggesting that a sentence well below the statutory maximum is an indicator of reasonableness).

Contrary to Defendant’s arguments, the § 3553(a) factors did not support a downward variance. As noted by the district court, a downward variance was not warranted based on the nature and characteristics of the offense, the need for the sentence to reflect the seriousness of the offense, the need to promote respect for the law and afford adequate deterrence, and the need to protect the public from further crime. Indeed, Defendant had a lengthy criminal history, including convic *773 tions for burglary, armed burglary, and aggravated battery. Also, this was the second time Defendant had illegally reentered the United States after being deported. Given that he reentered the United States less than one year after his most recent deportation suggests a need for deterrence and to promote respect for the law. See 18 U.S.C. § 3553(a)(2). It was entirely within the district court’s discretion to assign more weight to these factors than to Defendant’s mitigating circumstances. See United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court.” (quotations omitted)).

Further, Defendant’s argument regarding the disparate treatment and prolonged detention that he would suffer due to his alien status does not necessitate a downward variance because all defendants convicted of illegal reentry are non-citizens, and thus would be subject to the same treatment as Defendant.

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United States v. Kumar Sahadeo, 663 F. App'x 770 (11th Cir. 2016).

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United States v. Hunt
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United States v. Gonzalez
550 F.3d 1319 (Eleventh Circuit, 2008)
United States v. Irey
612 F.3d 1160 (Eleventh Circuit, 2010)
United States v. Francisco Cubero
754 F.3d 888 (Eleventh Circuit, 2014)