Case: 17-13623 Date Filed: 06/25/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13623 Non-Argument Calendar ________________________
D.C. Docket No. 6:16-cr-00053-CEM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICOLAS AGUILAR-VELAZQUEZ, a.k.a. John Doe, a.k.a. Nicolas Aguilar-Velasquez,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 25, 2018)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-13623 Date Filed: 06/25/2018 Page: 2 of 8
Nicolas Aguilar-Velazquez appeals his 36-month sentence for illegal reentry
into the United States following deportation in violation of 8 U.S.C. § 1326(a),
(b)(1) imposed upon resentencing after we vacated and remanded his original
sentence. On appeal, Aguilar-Velazquez argues that his sentence is:
(1) procedurally unreasonable and violated his right to due process because the
district court relied on unproven allegations in the presentence investigation report
(“PSI”) that he had three prior arrests for domestic violence to the exclusion of the
other 18 U.S.C. § 3553(a) factors; and, (2) substantively unreasonable because the
district court failed to consider mitigating factors and instead focused exclusively
on his criminal history when weighing the § 3553(a) factors.
I.
We typically review the reasonableness of a sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007).
Where a defendant fails to clearly state the grounds for an objection in the district
court, he waives the objection on appeal and plain error review applies. United
States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). However, we have held that
we will review the reasonableness of a sentence under the abuse-of-discretion
standard so long as the defendant raised the objection at some point during the
sentencing hearing. See United States v. Overstreet, 713 F.3d 627, 636 n.8 (11th
Cir. 2013). The party challenging a sentence has the burden of showing that the
2 Case: 17-13623 Date Filed: 06/25/2018 Page: 3 of 8
sentence is unreasonable. United States v. Barrington, 648 F.3d 1178, 1204 (11th
Cir. 2011).
To assess procedural reasonableness, we determine whether the district court
committed any significant procedural error by, among other things, selecting a
sentence based on clearly erroneous facts or failing to consider the 18 U.S.C.
§ 3553(a) factors. United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). A
district court is not required to state on the record that it has explicitly considered
or discussed each § 3553(a) factor; rather, the district court’s acknowledgment that
it considered the § 3553(a) factors and the defendant’s arguments is sufficient.
United States v. Docampo, 573 F.3d 1091, 1100 (11th Cir. 2009). In assessing the
§ 3553(a) factors, a court may consider a defendant’s background, character, and
previous conduct in imposing a sentence and is permitted to attach “great weight”
to one factor over others. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.
2009); see also 18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.”).
“A defendant has a due process right . . . not to be sentenced based on false
or unreliable information.” United States v. Ghertler, 605 F.3d 1256, 1269 (11th
Cir. 2010); see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a
3 Case: 17-13623 Date Filed: 06/25/2018 Page: 4 of 8
factor important to the sentencing determination, the court may consider relevant
information . . . provided that the information has sufficient indicia of reliability to
support its probable accuracy.”). Due process also demands “that the defendant be
given an opportunity to rebut factors that might enhance a sentence.” United
States v. Castellanos, 904 F.2d 1490, 1495 (11th Cir. 1990). When a defendant
claims that his due process rights were violated by the sentencing court’s reliance
on materially false information, the defendant must show that: (1) the challenged
evidence is materially false or unreliable; and (2) it actually served as the basis for
the sentence. Ghertler, 605 F.3d at 1269. The defendant bears the burden of
showing that the court explicitly relied on the false or reliable information. Id.
“Where a defendant objects to an allegation in a PSI and offers evidence at a
sentencing hearing to rebut the basis for the allegation, courts may not simply
accept a conclusion in the PSI without any evidentiary support.” United States v.
Bernardine, 73 F.3d 1078, 1082 (11th Cir. 1996). However, in the absence of
rebuttal evidence, we have upheld factual findings by the district court based on
facts contained in the PSI. See United States v. Newsome, 998 F.2d 1571, 1578
(11th Cir. 1993).
The district court did not err, plainly or otherwise, by relying on the PSI’s
factual statements regarding Aguilar-Velazquez’s prior arrests for violence against
women. First, the court did not rely on Aguilar-Velazquez’s criminal history to the
4 Case: 17-13623 Date Filed: 06/25/2018 Page: 5 of 8
exclusion of the other § 3553(a) factors. Rather, the sentencing court expressly
stated that it had considered all of the § 3553(a) factors and explicitly
acknowledged Aguilar-Velazquez’s mitigating arguments. Additionally, in
considering Aguilar-Velazquez’s background, character, and previous conduct, the
sentencing court was permitted to attach greater weight to his criminal history,
including his prior three arrests for violent acts against women. See 18 U.S.C.
§ 3661; Shaw, 560 F.3d at 1238.
Second, Aguilar-Velazquez failed to prove that the PSI’s statements
regarding those arrests were materially false or unreliable. He did not produce any
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Case: 17-13623 Date Filed: 06/25/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13623 Non-Argument Calendar ________________________
D.C. Docket No. 6:16-cr-00053-CEM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICOLAS AGUILAR-VELAZQUEZ, a.k.a. John Doe, a.k.a. Nicolas Aguilar-Velasquez,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 25, 2018)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-13623 Date Filed: 06/25/2018 Page: 2 of 8
Nicolas Aguilar-Velazquez appeals his 36-month sentence for illegal reentry
into the United States following deportation in violation of 8 U.S.C. § 1326(a),
(b)(1) imposed upon resentencing after we vacated and remanded his original
sentence. On appeal, Aguilar-Velazquez argues that his sentence is:
(1) procedurally unreasonable and violated his right to due process because the
district court relied on unproven allegations in the presentence investigation report
(“PSI”) that he had three prior arrests for domestic violence to the exclusion of the
other 18 U.S.C. § 3553(a) factors; and, (2) substantively unreasonable because the
district court failed to consider mitigating factors and instead focused exclusively
on his criminal history when weighing the § 3553(a) factors.
I.
We typically review the reasonableness of a sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007).
Where a defendant fails to clearly state the grounds for an objection in the district
court, he waives the objection on appeal and plain error review applies. United
States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). However, we have held that
we will review the reasonableness of a sentence under the abuse-of-discretion
standard so long as the defendant raised the objection at some point during the
sentencing hearing. See United States v. Overstreet, 713 F.3d 627, 636 n.8 (11th
Cir. 2013). The party challenging a sentence has the burden of showing that the
2 Case: 17-13623 Date Filed: 06/25/2018 Page: 3 of 8
sentence is unreasonable. United States v. Barrington, 648 F.3d 1178, 1204 (11th
Cir. 2011).
To assess procedural reasonableness, we determine whether the district court
committed any significant procedural error by, among other things, selecting a
sentence based on clearly erroneous facts or failing to consider the 18 U.S.C.
§ 3553(a) factors. United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). A
district court is not required to state on the record that it has explicitly considered
or discussed each § 3553(a) factor; rather, the district court’s acknowledgment that
it considered the § 3553(a) factors and the defendant’s arguments is sufficient.
United States v. Docampo, 573 F.3d 1091, 1100 (11th Cir. 2009). In assessing the
§ 3553(a) factors, a court may consider a defendant’s background, character, and
previous conduct in imposing a sentence and is permitted to attach “great weight”
to one factor over others. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.
2009); see also 18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.”).
“A defendant has a due process right . . . not to be sentenced based on false
or unreliable information.” United States v. Ghertler, 605 F.3d 1256, 1269 (11th
Cir. 2010); see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a
3 Case: 17-13623 Date Filed: 06/25/2018 Page: 4 of 8
factor important to the sentencing determination, the court may consider relevant
information . . . provided that the information has sufficient indicia of reliability to
support its probable accuracy.”). Due process also demands “that the defendant be
given an opportunity to rebut factors that might enhance a sentence.” United
States v. Castellanos, 904 F.2d 1490, 1495 (11th Cir. 1990). When a defendant
claims that his due process rights were violated by the sentencing court’s reliance
on materially false information, the defendant must show that: (1) the challenged
evidence is materially false or unreliable; and (2) it actually served as the basis for
the sentence. Ghertler, 605 F.3d at 1269. The defendant bears the burden of
showing that the court explicitly relied on the false or reliable information. Id.
“Where a defendant objects to an allegation in a PSI and offers evidence at a
sentencing hearing to rebut the basis for the allegation, courts may not simply
accept a conclusion in the PSI without any evidentiary support.” United States v.
Bernardine, 73 F.3d 1078, 1082 (11th Cir. 1996). However, in the absence of
rebuttal evidence, we have upheld factual findings by the district court based on
facts contained in the PSI. See United States v. Newsome, 998 F.2d 1571, 1578
(11th Cir. 1993).
The district court did not err, plainly or otherwise, by relying on the PSI’s
factual statements regarding Aguilar-Velazquez’s prior arrests for violence against
women. First, the court did not rely on Aguilar-Velazquez’s criminal history to the
4 Case: 17-13623 Date Filed: 06/25/2018 Page: 5 of 8
exclusion of the other § 3553(a) factors. Rather, the sentencing court expressly
stated that it had considered all of the § 3553(a) factors and explicitly
acknowledged Aguilar-Velazquez’s mitigating arguments. Additionally, in
considering Aguilar-Velazquez’s background, character, and previous conduct, the
sentencing court was permitted to attach greater weight to his criminal history,
including his prior three arrests for violent acts against women. See 18 U.S.C.
§ 3661; Shaw, 560 F.3d at 1238.
Second, Aguilar-Velazquez failed to prove that the PSI’s statements
regarding those arrests were materially false or unreliable. He did not produce any
evidence to rebut the PSI’s allegations that he was arrested on three separate
occasions for such violence, and in the absence of rebuttal evidence, the district
court did not err in relying on the facts contained in the PSI. See Newsome, 998
F.2d at 1578. Further, the district court did not abuse its discretion in relying on
these disputed allegations because the PSI’s factual findings had a sufficient
evidentiary foundation, namely, the police reports. Therefore, the district court
neither procedurally erred nor violated Aguilar-Velazquez’s right to due process
when it relied on disputed facts in determining the appropriate sentence.
5 Case: 17-13623 Date Filed: 06/25/2018 Page: 6 of 8
II.
After assessing a sentence for its procedural reasonableness, we examine
whether the sentence is substantively reasonable under the totality of the
circumstances and in light of the § 3553(a) factors. Cubero, 754 F.3d at 892.
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with 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. 18 U.S.C. § 3553(a)(2). The district court
must also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guidelines range, the pertinent policy statements of the Sentencing Commission,
the need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. 18 U.S.C. § 3553(a)(1), (3)–(7). “Although there is no
proportionality principle in sentencing, a major variance from the advisory
Sentencing Guidelines range does require a more significant justification than a
minor one—the requirement is that the justification be sufficiently compelling to
support the degree of the variance.” United States v. Irey, 612 F.3d 1160, 1196 (en
banc) (quotation omitted).
6 Case: 17-13623 Date Filed: 06/25/2018 Page: 7 of 8
The weight given to any specific § 3553(a) factor is committed to the sound
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007). Under the deferential abuse-of-discretion standard, a district court imposes
a substantively unreasonable sentence if it “(1) fails to afford consideration to
relevant [§ 3553(a)] factors that were due significant weight, (2) gives significant
weight to an improper or irrelevant factor, or (3) commits a clear error of judgment
in considering the proper factors.” Irey, 612 F.3d at 1189. The sentence will be
vacated “if, but only if, we are left with the definite and firm conviction that the
district court committed a clear error 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.” Id. at 1190 (quotation marks omitted). That a sentence is
significantly lower than the statutory maximum is an indicator of reasonableness.
See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Aguilar-Velazquez’s sentence is substantively reasonable. Although the
36-month sentence imposed was a significant upward variance from
Aguilar-Velazquez’s advisory guideline range of 15 to 21 months’ imprisonment,
the sentence met the goals encompassed within § 3553(a), and the district court
had a sufficiently compelling justification to support the variance given
Aguilar-Velazquez’s criminal history. As discussed above, the district court did
not consider his prior arrests for violence to the exclusion of the other § 3553(a)
7 Case: 17-13623 Date Filed: 06/25/2018 Page: 8 of 8
factors, but rather listened to Aguilar-Velazquez’s personal statement and
mitigating arguments and expressly addressed several of the § 3553(a) factors.
While the court found Aguilar-Velazquez’s arrests involving women particularly
troubling, it was entirely within its discretion to give more weight to his criminal
history than to other factors. Moreover, Aguilar-Velazquez’s 36-month sentence
was also well below the statutory maximum penalty of 10 years’ imprisonment,
suggesting substantive reasonableness. See Gonzalez, 550 F.3d at 1324. Aguilar-
Velazquez’s sentence falls well within the range of reasonableness. Therefore, the
district court is
AFFIRMED.