United States v. Mark Ruggiero

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 13, 2010
• Docket: 09-13361
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-13361 ELEVENTH CIRCUIT JANUARY 13, 2010 Non-Argument Calendar JOHN LEY ________________________ ACTING CLERK

D. C. Docket No. 08-00028-CR-AAA-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK RUGGIERO,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Georgia _________________________

(January 13, 2010)

Before TJOFLAT, BARKETT and FAY, Circuit Judges.

PER CURIAM:

Mark Ruggiero appeals the 21-month prison sentence he received after pleading guilty to knowingly and unlawfully transferring and attempting to transfer

obscene matter to an individual under the age of 16, in violation of 18 U.S.C.

§ 1470. He presents two issues: (1) whether, in determining the appropriate

sentence range under the Sentencing Guidelines, the district court erred in

enhancing his base offense level by seven levels pursuant to U.S.S.G. §

2G3.1(b)(1)(E) for facilitating the travel of a minor to engage in sexual conduct,

and (2) whether his sentence is unreasonable.

I.

Section 2G3.1(b)(1)(E) of the Guidelines provides for a seven-level

enhancement of the base offense level if the offense of conviction involved

“[d]istribution to a minor that was intended to persuade, induce, entice, coerce, or

facilitate the travel of, the minor to engage in prohibited sexual conduct.” U.S.S.G.

§ 2G3.1(b)(1)(E). Subsection D of that same section provides for a six-level

increase if the offense involved “[d]istribution to a minor that was intended to

persuade, induce, entice, or coerce the minor to engage in any illegal activity, other

than illegal activity covered under subdivision (E).” U.S.S.G. § 2G3.1(b)(1)(D).

The district court did not clearly err in finding that Ruggiero qualified for

the seven-level enhancement provided by § 2G3.1(b)(1)(E).1 As the Government

1 We review the district court's factual findings for clear error and its application of the Guidelines to those facts de novo. United States v. Hromada, 49 F.3d 685, 688 (11th Cir.1995).

2 properly notes, facilitating travel is only one of five different ways that a defendant

can qualify for the seven-level enhancement under this section, with the others

being to persuade, induce, entice, or coerce. See U.S.S.G. § 2G3.1(b)(1)(E). As

the facts of this case clearly demonstrate that, during his trip to Washington,

Ruggiero intended to have sexual intercourse with a minor, and intended to induce

a minor to have sexual intercourse with him, the seven-level enhancement was

warranted.

II.

A defendant challenging his sentence as unreasonable bears the burden of

proof. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005); he must

convince us that the sentence the district court imposed constituted an abuse of

discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 597, 169

L.Ed.2d 445 (2007).

In Gall, the Supreme Court held that our review of a sentence for

reasonableness involves a two-step process. First, we must ensure that the district

court committed no significant procedural error. Gall, 522 U.S. at __, 128 S.Ct. at

597; see also United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

Second, after we have determined that the court committed no procedural error, we

must ensure that the sentence is substantively reasonable. See Gall, 522 U.S. at __,

3 128 S.Ct. at 597.

A district court’s sentencing decision is procedurally sound if the court

correctly calculated the defendant's Guidelines sentence range, treated the

Guidelines as advisory, considered the factors listed in 18 U.S.C. § 3553(a),

selected a sentence that was based on facts that were not clearly erroneous, and

adequately explained the chosen sentence, including any deviation made from the

applicable sentencing range. Id. A sentence is substantively reasonable if the

district court acted within its discretion in determining that the § 3553(a) factors

supported the sentence and then justified any deviation from the applicable

sentence range. Id. at 600.

The factors presented in § 3553(a) include:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.

Talley, 431 F.3d at 786; see 18 U.S.C. § 3553(a). A “district court need only

‘acknowledge’ that it ‘considered the § 3553(a) factors[,]’ and need not discuss

each of these factors in either the sentencing hearing or in the sentencing order[.]”

4 United States v. Amedeo, 487 F.3d 823, 833 (11th Cir.), cert. denied, 128 S.Ct. 671

(2007) (internal citation omitted).

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

to the sound discretion of the district court. United States v. Clay, 483 F.3d 739,

743 (11th Cir. 2007). Thus, we will reverse a procedurally proper sentence only 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. McBride, 511 F.3d 1293, 1297-98 (11th Cir. 2007) (internal

quotation omitted). Although a sentence at the low end of the applicable guideline

range is not per se reasonable, “ordinarily we would expect a sentence within the

Guidelines range to be reasonable.” Talley, 431 F.3d at 786, 788.

In this case, the district court did not err in calculating Ruggiero’s applicable

sentence range, nor did the court treat the Guidelines as mandatory. As such,

Ruggiero’s sentence is procedurally sound. Ruggiero’s sentence is likewise

substantively reasonable. Before pronouncing sentence, the district court noted

that it had considered the statements of the parties, the facts of the case, and the

pre-sentence investigation report, which contained the recommended, but not

mandatory, Guidelines sentence range. The court further observed that it had

5 considered Ruggiero’s health problems, and found that he would be eligible for

treatment by the Bureau of Prisons, therefore declining to deviate from the

Guidelines sentence range on that basis. Because the Guidelines did not authorize

a sentence of home imprisonment, and because there is no indication 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,” Ruggiero’s argument that he should have been

sentenced to home confinement, rather than imprisonment, fails to demonstrate that

his sentence was unreasonable. See McBride, 511 F.3d at 1297-98.

AFFIRMED.