United States v. Pablo Lazaro Perez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 31, 2018
• Docket: 17-15348
• Status: Unpublished

Opinion

Case: 17-15348 Date Filed: 07/31/2018 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15348 Non-Argument Calendar ________________________

D.C. Docket No. 9:11-cr-80074-KAM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee, versus

PABLO LAZARO PEREZ,

Defendant - Appellant.

________________________

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

(July 31, 2018)

Before WILLIAM PRYOR, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

Pablo Lazaro Perez appeals his 248-month sentence, imposed below the

advisory guideline range, after pleading guilty to five offenses: (1) conspiracy to Case: 17-15348 Date Filed: 07/31/2018 Page: 2 of 9

commit bank robbery, 18 U.S.C. § 371; (2) armed bank robbery, 18 U.S.C. §

2113(a), (d) & 18 U.S.C § 2; (3) brandishing a firearm during and in relation to the

armed bank robbery, 18 U.S.C. § 924(c)(1)(A)(ii); and (4) two counts of

possessing a firearm and ammunition as a convicted felon, 18 U.S.C. §§ 922(g)(1)

& 924(e). On appeal, Mr. Perez argues that his sentence is both procedurally and

substantively unreasonable. After careful review, we affirm.

I

From approximately May of 2009 until March of 2011, Mr. Perez, along

with Rolando Mesa, committed twelve armed bank robberies and attempted

another in South Florida. Mr. Perez participated in planning the robberies,

provided the equipment used, and served as the getaway driver. On May 11, 2011,

Mr. Perez and Mr. Mesa were arrested. Mr. Perez was found with two guns, one in

his waistband and the other in the van he was driving. A search of his home,

subsequent to arrest, led to the discovery of a third gun and ammunition. Of the

amount stolen, $229,938, Mr. Perez profited approximately $107,000. Pursuant to

a plea agreement, Mr. Perez pled guilty to five offenses resulting from this conduct

and the government dismissed the remaining charges.

On September 23, 2011, Mr. Perez was sentenced to 300 months’

imprisonment—216 months for counts 1, 2, 4, and 5 and 84 months for count 3,

relating to his violation of § 924(c), to run consecutively. Because Mr. Perez had

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previous burglary convictions, his criminal history category (and, accordingly, his

advisory guideline range) was increased, and he was sentenced under the Armed

Career Criminal Act, 18 U.S.C. § 924(e). Five years after he was sentenced, Mr.

Perez filed a motion under 18 U.S.C. § 2255 to correct his sentence based on

Johnson v. United States, 135 S. Ct. 2551 (2015). He argued that his ACCA-

enhanced sentence was no longer valid because it had been imposed under the

residual clause in § 924(e)(2)(B)(ii), which was held unconstitutional in Johnson.

Mr. Perez also claimed that he could not be convicted for violating § 924(c)

because bank robbery was no longer considered a “crime of violence” after

Johnson. The district court granted Mr. Perez’s § 2255 motion in part, setting

aside his sentences.

At the resentencing hearing, Mr. Perez’s original offense level of 34

remained unchanged, but his criminal history category decreased from IV to III.

This reduction lowered his advisory guideline range from the original range of

210–262 months’ imprisonment to a range of 188–235 months, plus a consecutive

84-month sentence for the § 924(c) violation as required by 18 U.S.C.

§ 924(c)(1)(D)(ii).

After hearing from both parties, the district court elected to vary downward

because it found that “[i]n considering the factors of this [§] 3553, . . . that a

sentence below the guideline range will be sufficient but not greater than necessary

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. . . so I am going to reduce his sentence below the guideline range but not nearly

as much as has been requested.” D.E. 84 at 21. Thus, the court imposed sentences

of 60 months, 164 months, and 120 months for the conspiracy, armed bank

robbery, and felon in possession counts, all to run concurrently, representing a

downward variance of 24 months from the bottom end of the advisory guideline

range. The district court also imposed the mandatory 84 months consecutive term

for the § 924(c) violation, resulting in a total sentence of 248 months’

imprisonment.

II

We ordinarily review the reasonableness of a sentence for abuse of

discretion. See United States v. Foster, 878 F.3d 1297, 1308 (11th Cir. 2018)

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Yet, “[w]here a defendant

fails to clearly state the grounds for an objection in the district court, [ ] he waives

the objection on appeal and we are limited to reviewing for plain error.” United

States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). Mr. Perez failed to object to

the reasonableness of his sentences at his resentencing hearing before the district

court. Thus, we review only for plain error. See id.1

1 Mr. Perez did file pro se objections after the sentencing hearing, but these objections came too late to avoid plain error review. See United States v. Carpenter, 803 F.3d 1224, 1238 (11th Cir. 2015) (reviewing for plain error when counsel failed to inform court of specific objections at sentencing hearing); United States v. Snyder, 941 F.2d 1427, 1428 (11th Cir. 1991) (noting that one “purpose of eliciting objections following the imposition of sentence is” that “an objection, if well made, may permit the court to cure an error on the spot”). 4 Case: 17-15348 Date Filed: 07/31/2018 Page: 5 of 9

Under the plain error standard, Mr. Perez must show that “(1) there is an

error; (2) that is plain or obvious; (3) affecting [his] substantial rights in that it was

prejudicial and not harmless; and (4) that seriously affects the fairness, integrity or

public reputation of the judicial proceedings.” United States v. Raad, 406 F.3d

1322, 1323 (11th Cir. 2005).

III

A district court commits procedural error when it “fail[s] to calculate . . . the

Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the

§ 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to

adequately explain the chosen sentence[.]” Gall, 552 U.S. at 51. On this record,

the district court did not commit any procedural error in sentencing Mr. Perez,

much less plainly err.

Mr. Perez argues that the district court erred by treating the guideline range

as presumptively correct. We disagree. The record shows that, as required, the

district court calculated and considered the advisory guidelines. See

§ 3553(a)(4)(A)(i). Mr. Perez does not contend that the guideline range was

improperly calculated and nothing in the record supports his contention that the

district court treated the guideline range as presumptively correct—i.e., mandatory.

To the contrary, the court specified that it had considered the parties’ arguments

and the factors under § 3553(a) and actually varied downward, reasoning “that a

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sentence below the guideline range will be sufficient but not greater than

necessary.” D.E. 84 at 21.

Next, Mr. Perez contends that the district court failed to consider all of the

§ 3553(a) factors. Again, we disagree. The Supreme Court’s recent decision in

Chavez-Meza v. United States, 138 S. Ct. 1959 (2018), is particularly applicable

here as it considered a similar resentencing situation. After the advisory

guidelines for certain drug offenses were reduced, the defendant in Chavez-Meza

asked for a sentence reduction in light of the new range. See id. at 1963. Although

the district court reduced his sentence, the new sentence was not at the bottom end

of the new advisory guideline range. See id. The defendant appealed, arguing that

he should have received a greater reduction and that the district court did not

adequately explain why it imposed a sentence that was not “proportional” to the

previous sentence, which was at the bottom end of the previous guideline range.

See id. at 1963, 1966. The Supreme Court rejected this argument, stressing that

“the record of the initial sentencing sheds light on why the court picked a point

slightly above the bottom of the reduced Guidelines range when it modified

petitioner’s sentence.” Id. at 1967.

Similarly, here, the district court—which had presided over the original

sentencing hearing—and the parties made several references to the initial hearing.

See, e.g., D.E. 84 at 21 (district court referring to remarks “mentioned at the last

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sentencing”); id. at 18 (Mr. Perez stating that he is “not the same person that I was

. . . seven years ago when I was before this [c]ourt”). The district court also

explicitly stated that it “ha[d] considered the statements of the parties, the

Presentence Report” and the § 3553(a) factors. See id. at 21. As in Chavez-Meza,

“there was not much else for the judge to say.” 138 S. Ct. at 1967. See also

United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (“In general, the

district court is not required ‘to state on the record that it has explicitly considered

each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.”)

(quotation marks omitted). We conclude that the district court sufficiently

explained the chosen sentence.

Lastly, Mr. Perez argues that the district court failed to consider Dean v.

United States, 137 S. Ct. 1170 (2017), when determining the length of his

sentence. Contrary to his argument, however, the record makes clear that Mr.

Perez’s counsel brought Dean to the district court’s attention and the district court

expressly stated that it “ha[d] considered the statements of the parties.” Moreover,

Dean does not require sentencing courts to consider mandatory minimum

sentences under § 924(c) when calculating the sentence for predicate counts;

rather, Dean emphasizes the district court’s “long enjoyed discretion” and held that

mandatory minimum consecutive sentences under § 924(c) may (not must) be

considered. See id. at 1175–77.

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In sum, we are not convinced that the district court committed any

procedural error, much less plain error, when sentencing Mr. Perez.

IV

Next, we review the substantive reasonableness of a sentence for an abuse of

discretion under the totality of the circumstances. See Gall, 552 U.S. at 51. “A

district court abuses its discretion when it (1) fails to afford consideration to

relevant 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.” United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc). The party who challenges the sentence bears the burden to

show that it is unreasonable in light of the record and the factors listed in

§ 3553(a). See United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

Because our review is deferential, we will only vacate the sentence if we are “left

with the definite and firm conviction that the district court committed a clear error

of judgment[.]” United States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir.

2016). Mr. Perez has not met his burden of establishing that the sentence imposed

is substantively unreasonable.

Mr. Perez argues that the district court exclusively relied on the nature and

circumstances of the offense to arrive at the sentence imposed, failing to give equal

weight to the factors under § 3553(a). The record, however, shows that the court

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did consider that Mr. Perez “may have changed while in prison,” but concluded

that those changes did not “excuse the conduct that brought him here.” D.E. 84 at

22. The nature and circumstances of the offense is an appropriate factor to

consider, see § 3553(a)(1), and nothing prevents the district court from giving great

weight to an appropriate § 3553(a) factor over others. See United States v.

Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014) (“The district court must

evaluate all of the § 3553(a) factors, but it may attach great weight to one factor

over others”) (quotation marks omitted). We reject Mr. Perez’s contention that his

sentence is substantively unreasonable.

V

For the foregoing reasons, Mr. Perez’s sentence is neither procedurally nor

substantively unreasonable. We affirm.

AFFIRMED.