United States v. Pasqualino Falco

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 1, 2018
• Docket: 18-13176
• Status: Unpublished

Opinion

Case: 18-13176 Date Filed: 11/01/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13176 Non-Argument Calendar ________________________

D.C. Docket No. 9:06-cr-80188-RLR-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PASQUALINO FALCO,

Defendant-Appellant.

________________________

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

(November 1, 2018)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-13176 Date Filed: 11/01/2018 Page: 2 of 4

Pasqualino Falco appeals his 12-month-and-1-day sentence for violating the

terms of his supervised release, which was imposed on his conviction for

carjacking, in violation of 18 U.S.C. §§ 2119 and 2, and brandishing a weapon, in

violation of 18 U.S.C. § 924(c)(1)(A). He argues that the district court imposed a

substantively unreasonable sentence because it overlooked the rehabilitative

purpose of supervised release when weighing the factors at 18 U.S.C. § 3553(a).

We review the sentence imposed upon revocation of supervised release for

reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th

Cir. 2008). We review the reasonableness of a sentence under a deferential abuse-

of-discretion standard. United States v. Trailer, 827 F.3d 933, 935-36 (11th Cir.

2016). The party challenging the sentence bears the burden of showing it is

unreasonable. Id.

If a defendant violates a condition of his supervised release, the district court

may revoke a defendant’s supervised release and impose a prison term. 18 U.S.C.

§ 3583(e)(3). When revoking a term of supervised release, “the court should

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.” U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b). The district court must

consider the following § 3553(a) factors: (1) the nature and circumstances of the

offense and the history and characteristics of the defendant; (2) the need for

2 Case: 18-13176 Date Filed: 11/01/2018 Page: 3 of 4

deterrence, protection of the public, and rehabilitation; (3) the guideline range and

the kinds of sentences available; (4) any pertinent policy statements; (5) the need to

avoid sentencing disparities; and (6) the need to provide restitution to any victims.

See 18 U.S.C. §§ 3583(e), 3553(a)(1), (a)(2)(B)-(D), & (a)(4)-(7).

The court may, in its discretion, give greater weight to some factors over

others. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). The

weight given to any specific factor is committed to the sound discretion of the

district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). We will

sometimes “affirm the district court even though we would have gone the other

way had it been our call.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.

2010) (en banc) (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. Id.

Although we do not presume that a sentence within the advisory guideline

range is reasonable, we “ordinarily expect a sentence within the Guidelines range

to be reasonable.” United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)

(quotations omitted).

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Here, the district court acknowledged Falco’s efforts to rehabilitate himself,

including seeking stable housing, a stable job, and outpatient drug treatment.

However, the court determined that, because Falco (1) committed eight violations

of the terms of his supervised release within six months, (2) tested positive for drug

use (which the judge deemed particularly serious given his violent criminal

history), and (3) failed to report to his probation officer, the interests of deterring

future violations, protecting the public, and promoting respect for the law

demanded a sentence in the middle of the guideline range. Although Falco argues

that the court erred in placing more weight on these punitive factors than the

rehabilitative interest, the court had the discretion to assign such weights. See

Clay, 483 F.3d at 743. The court did not abuse that discretion because, although

the purpose of supervised release itself may be rehabilitative, the purpose of

revocation is to sanction the defendant’s breach of trust. See U.S.S.G. Ch. 7, Pt. A,

intro. cmt. 3(b). The reasonableness of the sentence is further supported because it

is within the guidelines range. See Hunt, 526 F.3d at 746. Accordingly, the district

court did not abuse its discretion and the sentence was substantively reasonable.

AFFIRMED.