United States v. Phillip Uscanga

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 6, 2021
• Docket: 20-11077
• Status: Unpublished

Opinion

USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11077 Non-Argument Calendar ________________________

D.C. Docket No. 8:18-cr-00205-WFJ-TGW-6

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PHILLIP USCANGA,

Defendant-Appellant. ________________________

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

(January 6, 2021)

Before MARTIN, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:

Phillip Uscanga, a federal prisoner currently incarcerated, appeals his

sentence of 144-months imprisonment for his conviction of one count of arson. He

argues that his sentence was substantively unreasonable because the district court USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 2 of 11

improperly analyzed both the 18 U.S.C. § 3553(a) sentencing factors and the facts

of his case. After careful review, we conclude the district court did not abuse its

discretion in sentencing Uscanga. We therefore affirm his sentence.

I

According to Uscanga’s presentence investigation report (“PSR”), on

January 1, 2016, Uscanga and another person got into a fight with rival gang

members at a gas station in Florida. Uscanga and two others then followed their

rivals in a Ford Mustang to the home of Julio Tellez in Manatee County. After

seeing their rivals go into Tellez’s house, the group decided to drive by in the

Mustang and shoot at the house, drawing their rivals out. The plan called for

others in the group to drive behind the Mustang in another vehicle and shoot at

anyone who came out of the house. The group carried out their plan, and one of

Uscanga’s codefendants shot and killed Tellez. Uscanga then decided they should

burn the Mustang because it was evidence of the murder. The group poured gas on

the Mustang, and one of Uscanga’s codefendants lit his jacket and threw it on the

vehicle, engulfing it in flames. Uscanga “admit[ted] to committing arson” but

“maintain[ed] that he played no knowing part in any plan to shoot or murder

anyone.” Instead, Uscanga says he only thought there would be a fist fight at

Tellez’s house.

2 USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 3 of 11

In 2018, a grand jury charged Uscanga and six codefendants with twelve

counts related to a racketeering conspiracy. A superseding indictment added more

charges. Altogether, Uscanga himself was charged with six counts: racketeering

conspiracy, conspiracy to commit arson, arson, conspiracy to commit murder in aid

of racketeering, murder in aid of racketeering, and use of a firearm during and in

relation to a crime of violence. Uscanga ultimately pled guilty to one count of

arson under 18 U.S.C. § 844(i), and the government dismissed the remaining five

counts. In his plea agreement, Uscanga stipulated that he and his codefendants

burned the Mustang after it was used in the drive-by shooting because it was

evidence of the murder.

Uscanga’s PSR applied a base offense level of 12 under United States

Sentencing Guidelines § 2K1.4(a)(4). The PSR also applied a two-level increase

under section 2K1.4(b)(1) because the arson was committed to conceal the murder

of Tellez and a two-level reduction under section 3E1.1(a) for acceptance of

responsibility. Based on a total offense level of 12 and a criminal history category

of III, the PSR identified a guideline range of 15- to 21-months imprisonment.

However, because the crime to which he pled guilty carried a five-year statutory

mandatory minimum, it was greater than the guideline range’s maximum, and the

PSR set Uscanga’s final guideline range as 60-months imprisonment.

3 USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 4 of 11

Prior to sentencing, the district court sua sponte entered an order directing

Uscanga’s counsel to be prepared to address at sentencing why the court should not

vary upward from the guideline range due to the totality of the circumstances; the

nature of the activity shown by the dismissed charges; concealment of other

offenses; physical injury; and that the actual offense is outside the heartland of

offenses contemplated by the advisory guideline level. The district court then sua

sponte entered another order directing Uscanga’s counsel to be prepared to show

cause why Uscanga’s base offense level should not be 38 for felony murder; why

Uscanga did not participate in a conspiracy to commit aggravated assault which

resulted in felony murder; and why the starting offense level should not be for

accessory after the fact to first degree murder. The district court also filed its own

sentencing memorandum, in which it detailed the facts as established in Uscanga’s

case and in his codefendants’ trial.

The district court ultimately determined the guideline range to be 60-months

imprisonment. At sentencing, however, the district court varied upward and

sentenced Uscanga to 144-months imprisonment. The court stated that even under

Uscanga’s version of the facts, he was “at a minimum” an accessory after the fact

to murder. And when Uscanga and his group went to commit an aggravated

assault and “end[ed] up killing someone with a gun, [it was] a felony murder.”

The court also noted that “if anybody takes any message here, tell those people in

4 USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 5 of 11

that neighborhood all this stuff has got to stop.” In its statement of reasons, the

district court said it varied upward for several considerations related to the nature

and circumstances of the offense: Uscanga’s mens rea, his extreme conduct, the

dismissed/uncharged conduct, his role in the offense, and the fact that he had

committed the arson to cover up a murder in aid of racketeering. The district court

also varied upward to reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense, afford adequate deterrence to

criminal conduct, protect the public from further crimes of the defendant, and

avoid unwarranted sentencing disparities among the defendants. It further noted

that “[t]he Guidelines do not cover an arson of this purpose and magnitude.”

The district court included an attachment to its statement of reasons to

further explain why it varied upward. It observed that the “sentence accounts for

the seriousness of the underlying offense and the dismissed charges, all of which

led to the Defendant’s arson.” The district court noted that “[t]he testimony and

evidence at the codefendants’ trial placed Mr. Uscanga at all the major events on

January 1, 2016, up to and including Mr. Tellez being murdered.” It recounted

those events in detail and said the arson offense was “intertwined with the criminal

conduct shown.” The district court recognized Uscanga’s assertion that he thought

they were only going to Tellez’s house for a fist fight. But it said even under those

facts, “that means Mr. Uscanga drove his gang to a gang fight where death

5 USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 6 of 11

ensued.” With the mandatory minimum for arson at 5-years imprisonment and the

maximum sentence at 20 years, the court observed that Uscanga’s sentence “falls

below the middle” of those two limits and was “sufficient but not greater than

necessary to comply with the purposes of sentencing.” This is Uscanga’s appeal.

II

We review a district court’s sentencing decision for abuse of discretion.

United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc).

Whether a sentence was substantively unreasonable depends on the totality of the

circumstances, including whether the section 3553(a) factors support the sentence.

United States v. Overstreet, 713 F.3d 627, 636 (11th Cir. 2013). A sentence may

be substantively unreasonable if the district court selects the sentence arbitrarily,

bases the decision on impermissible section 3553(a) factors, or fails to consider

pertinent section 3553(a) factors. United States v. Pugh, 515 F.3d 1179, 1191–92

(11th Cir. 2008). “The weight to be accorded to any given § 3553(a) factor is a

matter committed to the sound discretion of the district court, and we will not

substitute our judgment in weighing the relevant factors.” United States v.

Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotation marks omitted and

alterations adopted). The party challenging the sentence has the burden of showing

that the sentence was substantively unreasonable in light of the section 3553(a)

factors and the record. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.

6 USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 7 of 11

2010). We will not reverse a sentence unless “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. Shaw,

560 F.3d 1230, 1238 (11th Cir. 2009) (quotation marks omitted).

III

In our Court, Uscanga says his sentence was substantively unreasonable and

thus the district court abused its discretion for three reasons. First, he argues that

the district court improperly analyzed the various section 3553(a) factors. Second,

Uscanga asserts that the district court selected his sentence arbitrarily. Third, he

argues that his sentence was unreasonable based on the facts of his case.

As to Uscanga’s first argument, we see no error in the way the district court

evaluated the various sentencing factors. The district court explained that it varied

upward and selected the sentence for a host of reasons based on the section 3553(a)

factors and the record. The court made a finding that the Guidelines did not cover

“arson of this purpose and magnitude,” which made Uscanga an accessory after the

fact to murder. Based on that finding, the district court considered the nature and

circumstances of the offense and the need for the sentence to reflect the seriousness

of the offense, promote respect for the law, and provide just punishment for the

offense. See 18 U.S.C. § 3553(a)(1)–(2)(A). The weight the district court gave

7 USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 8 of 11

those factors is committed to its sound discretion. See Amedeo, 487 F.3d at 832.

Uscanga says the district court improperly considered the dismissed charges for

racketeering and murder in considering these factors when the charges were

unsupported in the record. He also says the district court improperly considered

facts from his codefendants’ trials. But the district court imposed the sentence

“viewing the facts as [Uscanga’s] lawyer presented them.” To the extent the

district court relied on Uscanga’s dismissed charges, “sentencing courts may

consider both uncharged and acquitted conduct in determining the appropriate

sentence.” United States v. Rushin, 844 F.3d 933, 942 (11th Cir. 2016) (quotation

marks omitted). And to the extent the district court relied on facts from Uscanga’s

codefendants’ trials, sentencing courts can consider evidence presented at the trial

of a third person so long as the defendant is given the opportunity to rebut or cast

doubt on the reliability of that evidence. See United States v. Castellanos, 904

F.2d 1490, 1496 (11th Cir. 1990). The district court provided Uscanga with this

opportunity when it told him in advance of sentencing that it was considering

evidence from his codefendants’ trial.

Neither did the district court err when it analyzed the factors concerning the

need to protect the public from further crimes of the defendant and the need to

afford adequate deterrence to criminal conduct. See 18 U.S.C. § 3553(a)(2)(B)–

(C). Contrary to Uscanga’s assertion, the district court expressly noted Uscanga’s

8 USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 9 of 11

criminal history and said that his incarceration was needed to protect the public. It

further stated that the sentence would “provide deterrence to others in this gang-

ridden, high crime area of Manatee County who may seek to emulate” Uscanga’s

behavior. While Uscanga takes issue with the district court’s statement at

sentencing that “if anybody takes any message here, . . . all this stuff has got to

stop,” that statement supports the court’s reliance on the factor related to

deterrence of criminal conduct. See id. § 3553(a)(2)(B).

Uscanga’s assertion that the district court failed to consider “the applicable

category of offense committed by the applicable category of defendant as set forth

in the guidelines,” id. § 3553(a)(4)(A), is unsupported by the record. The district

court first determined Uscanga’s guideline range but ultimately “imposed a

sentence otherwise outside the sentencing guideline system” because the

“Guidelines do not cover an arson of this purpose and magnitude.” It separately

noted that the “sentencing guidelines here would be the same if the Defendant stole

eggs and burned down the ramshackle chicken coop to hide his crime” and thus

“an upward variance is appropriate.” These statements show the district court

considered the Guidelines but found them insufficient based on other factors. We

cannot “substitute our judgment in weighing the relevant factors.” Amedeo, 487

F.3d at 832 (quotation marks omitted).

9 USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 10 of 11

Uscanga says there are unwarranted sentencing disparities among the

codefendants in this case, a result he argues is contrary to the factor concerning the

need to avoid sentencing disparities. See 18 U.S.C. § 3553(a)(6). We note that the

district court expressly considered and based its decision on this factor. While the

district court did not discuss the factor in any detail, it also wasn’t required to do

so. See United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). In any

event, Uscanga does not identify any codefendants “with similar records who have

been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(6). While he

notes that John Cintron, a codefendant, also pled guilty to arson, Uscanga

acknowledges that Cintron received a shorter sentence on account of his juvenile

status.

Uscanga’s second argument as to why his sentence was substantively

unreasonable is that the district court selected the sentence arbitrarily. Uscanga

says the district court based the sentence on its finding that when Uscanga and his

group went to commit an aggravated assault and ended up killing someone, they

committed felony murder. According to Uscanga, there was no evidence he

attempted to commit an aggravated assault. In his view, this indicates “the district

court knew it was going to vary upward” and shows the court’s “personal

predilection.” This record does not support the idea that the district court selected

the sentence arbitrarily. The district court reached its finding “[e]ven viewing the

10 USCA11 Case: 20-11077 Date Filed: 01/06/2021 Page: 11 of 11

facts as [Uscanga’s] lawyer presented them.” And the way Uscanga’s lawyer

presented the facts was that Uscanga went to Tellez’s house thinking it was going

to be a fist fight. Nonetheless, the district court also found that Uscanga was “at a

minimum” an accessory after the fact to murder, which appeared to be an

independent basis for the sentence.

Uscanga’s last argument is that his sentence was substantively unreasonable

based on the facts of the case. Even putting aside the facts Uscanga disputes and

the dismissed charges, Uscanga expressly acknowledged in his plea agreement that

he “decided to burn the red Mustang used in the shooting[] because it was evidence

of the murder.” The district court accepted Uscanga’s characterization of the facts

and found that Uscanga was an accessory after the fact to murder. On this record,

Uscanga has not carried his burden of leaving us with the “definite and firm

conviction that the district court committed a clear error of judgment” in selecting

Uscanga’s sentence. See Shaw, 560 F.3d at 1238 (quotation marks omitted).

AFFIRMED.