United States v. Orlando Bustabad

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 15, 2019
• Docket: 18-14278
• Status: Unpublished

Opinion

Case: 18-14278 Date Filed: 08/15/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14278 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cr-20441-KMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ORLANDO BUSTABAD,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(August 15, 2019)

Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.

PER CURIAM: Case: 18-14278 Date Filed: 08/15/2019 Page: 2 of 5

Orlando Bustabad pleaded guilty pursuant to a written agreement to one

count of conspiracy to commit healthcare fraud and wire fraud. Before his

scheduled sentence hearing, he fled to Mexico. He remained at large for eight

months, at which point he surrendered to U.S. Customs and Border Patrol agents.

Because of his flight, the district court at his rescheduled sentence hearing imposed

a guidelines enhancement for obstruction of justice under section 3C1.1 of the

United States Sentencing Guidelines and denied a reduction for acceptance of

responsibility under section 3E1.1. The resulting guidelines range was 235 to 240

months imprisonment, and the court sentenced Bustabad to the bottom of that

range. This is his appeal.

Bustabad challenges both the procedural and the substantive reasonableness

of his 235-month sentence. “We review the reasonableness of a sentence for abuse

of discretion using a two-step process.” United States v. Tome, 611 F.3d 1371,

1378 (11th Cir. 2010). “We look first at whether the district court committed any

significant procedural error and then at whether the sentence is substantively

reasonable under the totality of the circumstances.” Id.

The only procedural error Bustabad alleges is that the district court did not

apply the acceptance of responsibility reduction when calculating the guidelines

range. “We review the district court’s determination of acceptance of

responsibility only for clear error.” United States v. Amedeo, 370 F.3d 1305, 1320

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(11th Cir. 2004). “A district court’s determination that a defendant is not entitled

to acceptance of responsibility will not be set aside unless the facts in the record

clearly establish that a defendant has accepted personal responsibility.” Id. at

1320–21 (quotation marks omitted); see U.S.S.G. § 3E1.1 cmt. n.5 (“The

sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility. For this reason, the determination of the sentencing judge is entitled

to great deference on review.”).

Bustabad does not contest the district court’s application of the obstruction

of justice enhancement, and the commentary to the guidelines notes that conduct

resulting in such an enhancement “ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct,” U.S.S.G. § 3E1.1 cmt. n.4. But

the commentary suggests that “[t]here may . . . be extraordinary cases in which”

both the obstruction of justice enhancement and the acceptance of responsibility

reduction may apply. Id. Bustabad argues that his is such an extraordinary case

because even though he fled the country before his first sentence hearing, he

eventually surrendered voluntarily in order to help his son, who had been convicted

as one of Bustabad’s co-conspirators.

We disagree. Bustabad admitted that he fled the country for eight months to

avoid his sentence — conduct that is plainly “inconsistent with [an] acceptance of

responsibility,” U.S.S.G. § 3E1.1 cmt. n.3. That he eventually returned to face his

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sentence (whether to help his son or, as the district court found, for some other

reason) does not make his case sufficiently extraordinary for him to receive the

acceptance of responsibility reduction in spite of his obstruction of justice. 1 In

short, the district court did not clearly err by refusing to apply the acceptance of

responsibility reduction.

Bustabad also contends that his bottom of the guidelines sentence is

substantively unreasonable. “We ordinarily expect a sentence within the

Guidelines range to be reasonable . . . .” United States v. White, 663 F.3d 1207,

1217 (11th Cir. 2011) (quotation marks omitted). As “[t]he party challenging the

sentence,” Bustabad “bears the burden to show it is unreasonable in light of the

record and the [18 U.S.C.] § 3553(a) factors.” Tome, 611 F.3d at 1378. We will

vacate a sentence as substantively unreasonable “if, but 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. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).

1 Bustabad also argues that the district court “was under the mistaken impression that Bustabad’s flight prior to sentencing automatically disqualified him for the [acceptance of responsibility] reduction.” But the district court acknowledged that Bustabad could be eligible for the acceptance of responsibility reduction in an “extraordinary circumstance,” as contemplated by the commentary to the guidelines.

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Bustabad argues that the district court gave undue weight to his post-flight

guidelines range and not enough weight to mitigating factors like his age and

health. 2 But “[t]he weight to be accorded any given § 3553(a) factor” — such as

the applicable guidelines range, 18 U.S.C. § 3553(a)(4)(A), and “the history and

characteristics of the defendant,” id. § 3553(a)(1) — “is a matter committed to the

sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007). Bustabad has failed to show that the district court abused that

discretion.

Lastly, Bustabad argues that there is an unwarranted disparity between his

sentence and his son’s sentence. He asserts that “[t]he only difference in their

circumstances at the time of their sentencing was Bustabad’s flight.” It is not,

however, substantively unreasonable for such a difference to result in the

sentencing disparity about which he now complains. See United States v.

Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (“A well-founded claim of

disparity . . . assumes that apples are being compared to apples.”) (quotation marks

omitted).

AFFIRMED.

2 The court explicitly addressed Bustabad’s age and health, noting that Bustabad “should have thought about those things before he engaged in that criminal conduct.”