Case: 17-14577 Date Filed: 08/17/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14577 Non-Argument Calendar ________________________
D.C. Docket No. 8:07-cr-00017-SDM-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MATEO GOMEZ-SILVESTRE, a.k.a. Mateo Silvestre-Diego, a.k.a. Noe Seferino-Leanardo,
Defendant - Appellant. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(August 17, 2018)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-14577 Date Filed: 08/17/2018 Page: 2 of 8
Mateo Gomez-Silvestre was convicted in Florida federal court of aiding and
abetting the transportation of illegal aliens, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (B)(i), and 18 U.S.C. § 2. While on supervised release,
and after having reentered the United States without authorization, Gomez 1 was
convicted in California federal court of conspiring to harbor and transport illegal
aliens. After serving his California sentence, Gomez was returned to Florida and
sentenced to 36-months imprisonment for violating the terms of his Florida
supervised release. He now challenges that sentence. He argues that the district
court erred when it considered the length of his original Florida sentence in
deciding the appropriate sentence for his supervised release violation, and
committed a clear error of judgment in weighing the sentencing factors. After
careful review, we affirm.
I.
In 2006, Gomez was indicted on two counts, including one count of aiding
and abetting in transporting illegal aliens, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (B)(i) and 18 U.S.C. § 2. In 2007, Gomez pled guilty to
that charge and agreed to cooperate with investigators in exchange for the
prosecution’s motion for a two-level downward departure under United States
Sentencing Guideline § 5K1.1 and dismissal of the remaining counts. The court
1 Because he refers to himself as Gomez, we do as well. 2 Case: 17-14577 Date Filed: 08/17/2018 Page: 3 of 8
sentenced Gomez to 27-months imprisonment followed by 60 months of
supervised release. The terms of the supervised release required Gomez not to
commit another crime and, if deported, not to reenter without permission from an
appropriate governmental authority. At some point after being released from
custody, Gomez was deported. And at some point after that, he reentered the
United States without authorization.
In 2011, while still on supervised release for his 2007 Florida federal
conviction, Gomez was convicted in federal court in California of conspiring to
harbor and transport illegal aliens. For this conviction, Gomez was sentenced to
96-months imprisonment followed by another term of supervised release. After he
served his prison term in California, Gomez was transported to Florida for a
hearing on the violation of the terms of his supervised release for his 2007 Florida
conviction.
At the revocation hearing, Gomez admitted to both the 2011 California
conviction, a Grade B violation, and to unlawfully reentering the United States in
violation of the special conditions of the supervised release, a Grade C violation.
Based on the Grade B violation and his criminal history category of V, the court
calculated his guideline range as 18 to 24 months, followed by another period of
supervised release.
3 Case: 17-14577 Date Filed: 08/17/2018 Page: 4 of 8
The government asked for a sentence of 24-months imprisonment with no
supervised release. Gomez in turn asked for “a term of imprisonment of a year and
a day given all the time he has already served.” Gomez’s attorney also presented a
number of factors for mitigation. Counsel argued that Gomez had already served a
substantial sentence for his California conviction; had taken full responsibility for
his actions; and that Gomez’s underlying conduct (serving as the driver for a group
of non-citizens who were traveling to an agricultural job) was a relatively minor
violation.
The court sentenced Gomez to 36-months imprisonment, which was an
upward variance. The court said it considered the advisory guideline range and the
factors in 18 U.S.C. § 3553(a). The court noted that Gomez “seems to relentlessly
pursue the same line of criminal conduct despite the sentences that have been
imposed on him.” The court also noted that “the 27 months that were imposed on
him here in July of 2007 proved insufficient, so I am not motivated to sentence him
at an even lower number than that for essentially the same conduct resumed and
flagrantly so.” Determining that there were “a number of reasons here to suggest
the manifest inadequacy of the guideline sentence,” the court said an above-
guidelines sentence was appropriate. Gomez objected to the sentence procedurally
and substantively. This appeal followed.
II.
4 Case: 17-14577 Date Filed: 08/17/2018 Page: 5 of 8
“Pursuant to 18 U.S.C. § 3583(e), upon finding that the defendant violated a
condition of supervised release, a district court may revoke the term of supervised
release and impose a term of imprisonment after considering the specific factors
set forth in 18 U.S.C. § 3553(a).” United States v. Velasquez Velasquez, 524 F.3d
1248, 1252 (11th Cir. 2008) (per curiam). “We review the sentence imposed upon
the revocation of supervised release for reasonableness.” Id. In considering the
reasonableness of a sentence, we review de novo “whether a factor considered by
the district court in sentencing a defendant is impermissible.” Id. We then review
the substantive reasonableness of a sentence under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “The party
challenging the sentence bears the burden to show it is unreasonable in light of the
record and the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010).
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2).
The court must also consider the history and characteristics of the defendant. Id.
§ 3553(a)(1).
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 17-14577 Date Filed: 08/17/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14577 Non-Argument Calendar ________________________
D.C. Docket No. 8:07-cr-00017-SDM-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MATEO GOMEZ-SILVESTRE, a.k.a. Mateo Silvestre-Diego, a.k.a. Noe Seferino-Leanardo,
Defendant - Appellant. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(August 17, 2018)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-14577 Date Filed: 08/17/2018 Page: 2 of 8
Mateo Gomez-Silvestre was convicted in Florida federal court of aiding and
abetting the transportation of illegal aliens, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (B)(i), and 18 U.S.C. § 2. While on supervised release,
and after having reentered the United States without authorization, Gomez 1 was
convicted in California federal court of conspiring to harbor and transport illegal
aliens. After serving his California sentence, Gomez was returned to Florida and
sentenced to 36-months imprisonment for violating the terms of his Florida
supervised release. He now challenges that sentence. He argues that the district
court erred when it considered the length of his original Florida sentence in
deciding the appropriate sentence for his supervised release violation, and
committed a clear error of judgment in weighing the sentencing factors. After
careful review, we affirm.
I.
In 2006, Gomez was indicted on two counts, including one count of aiding
and abetting in transporting illegal aliens, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (B)(i) and 18 U.S.C. § 2. In 2007, Gomez pled guilty to
that charge and agreed to cooperate with investigators in exchange for the
prosecution’s motion for a two-level downward departure under United States
Sentencing Guideline § 5K1.1 and dismissal of the remaining counts. The court
1 Because he refers to himself as Gomez, we do as well. 2 Case: 17-14577 Date Filed: 08/17/2018 Page: 3 of 8
sentenced Gomez to 27-months imprisonment followed by 60 months of
supervised release. The terms of the supervised release required Gomez not to
commit another crime and, if deported, not to reenter without permission from an
appropriate governmental authority. At some point after being released from
custody, Gomez was deported. And at some point after that, he reentered the
United States without authorization.
In 2011, while still on supervised release for his 2007 Florida federal
conviction, Gomez was convicted in federal court in California of conspiring to
harbor and transport illegal aliens. For this conviction, Gomez was sentenced to
96-months imprisonment followed by another term of supervised release. After he
served his prison term in California, Gomez was transported to Florida for a
hearing on the violation of the terms of his supervised release for his 2007 Florida
conviction.
At the revocation hearing, Gomez admitted to both the 2011 California
conviction, a Grade B violation, and to unlawfully reentering the United States in
violation of the special conditions of the supervised release, a Grade C violation.
Based on the Grade B violation and his criminal history category of V, the court
calculated his guideline range as 18 to 24 months, followed by another period of
supervised release.
3 Case: 17-14577 Date Filed: 08/17/2018 Page: 4 of 8
The government asked for a sentence of 24-months imprisonment with no
supervised release. Gomez in turn asked for “a term of imprisonment of a year and
a day given all the time he has already served.” Gomez’s attorney also presented a
number of factors for mitigation. Counsel argued that Gomez had already served a
substantial sentence for his California conviction; had taken full responsibility for
his actions; and that Gomez’s underlying conduct (serving as the driver for a group
of non-citizens who were traveling to an agricultural job) was a relatively minor
violation.
The court sentenced Gomez to 36-months imprisonment, which was an
upward variance. The court said it considered the advisory guideline range and the
factors in 18 U.S.C. § 3553(a). The court noted that Gomez “seems to relentlessly
pursue the same line of criminal conduct despite the sentences that have been
imposed on him.” The court also noted that “the 27 months that were imposed on
him here in July of 2007 proved insufficient, so I am not motivated to sentence him
at an even lower number than that for essentially the same conduct resumed and
flagrantly so.” Determining that there were “a number of reasons here to suggest
the manifest inadequacy of the guideline sentence,” the court said an above-
guidelines sentence was appropriate. Gomez objected to the sentence procedurally
and substantively. This appeal followed.
II.
4 Case: 17-14577 Date Filed: 08/17/2018 Page: 5 of 8
“Pursuant to 18 U.S.C. § 3583(e), upon finding that the defendant violated a
condition of supervised release, a district court may revoke the term of supervised
release and impose a term of imprisonment after considering the specific factors
set forth in 18 U.S.C. § 3553(a).” United States v. Velasquez Velasquez, 524 F.3d
1248, 1252 (11th Cir. 2008) (per curiam). “We review the sentence imposed upon
the revocation of supervised release for reasonableness.” Id. In considering the
reasonableness of a sentence, we review de novo “whether a factor considered by
the district court in sentencing a defendant is impermissible.” Id. We then review
the substantive reasonableness of a sentence under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “The party
challenging the sentence bears the burden to show it is unreasonable in light of the
record and the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010).
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2).
The court must also consider the history and characteristics of the defendant. Id.
§ 3553(a)(1). The weight given to any specific § 3553(a) factor is “committed to
5 Case: 17-14577 Date Filed: 08/17/2018 Page: 6 of 8
the sound discretion of the district court.” United States v. Clay, 483 F.3d 739,
743 (11th Cir. 2007) (quotation omitted). However, a district court abuses its
discretion when it (1) does not consider significant, relevant factors, (2) gives an
improper or irrelevant factor significant weight, or (3) unreasonably balances
proper factors such that there is a clear error of judgment. United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
III.
On appeal, Gomez argues the district court “gave significant weight to a
wholly irrelevant factor—the length of Mr. Gomez’s previous sentence” when it
decided to sentence him to 36-months imprisonment for violating the terms of his
supervised release. He also says the district court committed “a clear error of
judgment in its weighing of relevant sentencing factors,” and that the record did
not support an upward variance from the recommended guideline sentence.
The district court did not err in considering the length of Gomez’s
underlying sentence. In revocation proceedings, “penalties are contemplated in
relation to the original offense.” United States v. Williams, 790 F.3d 1240, 1251
(11th Cir. 2015). The length of a previous sentence can also be relevant to a
number of § 3553(a) factors in a revocation proceeding, including the history and
characteristics of a defendant, and the ability of a particular sentence to promote
respect for the law and deter future criminal conduct. See 18 U.S.C. § 3553(a)(1),
6 Case: 17-14577 Date Filed: 08/17/2018 Page: 7 of 8
(a)(2)(A)–(B). While a sentencing court may act improperly by giving controlling
effect to the length of a previously imposed sentence, the previously imposed
sentence is not a wholly improper or irrelevant factor in the context of a violation
of supervised release.
The district court also did not commit a clear error of judgment in weighing
the relevant sentencing factors. See Irey, 612 F.3d 1160, 1189. At the sentencing
hearing, the district court said it had considered Gomez’s guideline range and the
§ 3553(a) factors, noting in particular Gomez’s criminal history and the fact that
Gomez had not “ke[pt] faith with the United States after his sentence was reduced
for his cooperation.” The court also provided reasons for its decision to upwardly
vary. The court noted that Gomez had continued to “pursue the same line of
criminal conduct despite the sentences that have been imposed on him,” making
the guidelines range inadequate to fulfill the purposes of § 3553(a)(2). These
considerations are in line with the commentary to the Sentencing Guidelines,
which direct a court at revocation proceedings to “sanction primarily the
defendant’s breach of trust, while taking into account, to a limited degree, the
seriousness of the underlying violation and the criminal history of the violator.”
United States Sentencing Guidelines ch. 7, pt. A, introductory cmt. 3(b). Taken as
a whole, we cannot say the balance struck by the district court was an abuse of
discretion. Gall, 552 U.S. at 51, 128 S. Ct. at 597.
7 Case: 17-14577 Date Filed: 08/17/2018 Page: 8 of 8
AFFIRMED.