United States v. Raymy Escoto

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 8, 2021
• Docket: 20-11048
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11048 Non-Argument Calendar ________________________

D.C. Docket No. 8:18-cr-00205-WFJ-TGW-5

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RAYMY ESCOTO,

Defendant - Appellant. ________________________

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

(February 8, 2021)

Before MARTIN, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:

Raymy Escoto appeals his sentence for arson. He argues that his sentence of

144 months’ imprisonment, a product of an 84-month upward variance, is USCA11 Case: 20-11048 Date Filed: 02/08/2021 Page: 2 of 13

substantively unreasonable because it was based on facts the sentencing judge

should not have considered, and an erroneous analysis of the 18 U.S.C. § 3553(a)

sentencing factors. After careful consideration, we affirm Escoto’s sentence.

I.

In 2016, Escoto participated in the burning of a red Ford Mustang used in a

drive-by shooting that resulted in the death of Julio Tellez. Escoto and others did

“donuts” in the Mustang before setting it on fire. Initially, he was indicted on a

number of charges related to a racketeering conspiracy, including the drive-by

shooting itself and arson. In 2019, a grand jury issued a superseding indictment

with three additional charges, including murder in aid of racketeering. In 2019,

Escoto pled guilty to arson in violation of 18 U.S.C. § 844(i), which carries a

mandatory minimum sentence of 5 years’ imprisonment and a maximum penalty of

20 years’ imprisonment. The government ultimately dismissed all counts against

Escoto except the lone count of arson.

Escoto’s presentence investigation report (“PSR”) first recited facts related

to his participation in a racketeering enterprise, including the fact that Escoto “was

a member of the Enterprise whose responsibilities included participating in murder,

arson, burglary, robbery, battery, and other acts of violence and intimidation;

distributing controlled substances; and destroying evidence of the criminal

activities of the Enterprise,” and that he “assaulted, battered, and robbed” someone

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in December 2015. The PSR then stated that after two of his codefendants got into

a fight with rival gang members at a gas station, they picked Escoto up, acquired

guns and ammunition, and drove to Tellez’s house where they shot and killed him.

Escoto objected to this part of the PSR and claimed that his codefendants only

picked him up after they had murdered Tellez. He did not object to any other facts

in the PSR.

Escoto’s PSR began with a base offense level of 12 and then added a two-

level increase under United States Sentencing Guideline § 2K1.4(b)(1) because the

arson was committed to conceal another offense, the murder of Tellez. The PSR

originally identified Escoto’s Guidelines range as 21–27 months’ imprisonment,

but because arson carries a statutory mandatory minimum of 5 years’

imprisonment, the PSR set his Guidelines range at 60 months.

Before sentencing, the district court filed its own sentencing memorandum

in which it set out the facts it intended to rely upon. The district court stated that

the evidence at three of Escoto’s codefendants’ trial “established a racketeering

enterprise through which these defendants and others conspired to control a

geographic territory.” It also said that Escoto provided the gun that was used to

murder Tellez, helped to plan the shooting, and was riding in the Mustang when

Tellez was shot. The district court’s sentencing memorandum also described the

arson that occurred afterward.

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Escoto filed a written objection to the facts contained in the district court’s

sentencing memorandum. Specifically, Escoto denied that he “1) was a member of

a [Racketeer Influenced and Corrupt Organizations Act (“RICO”)] conspiracy;

2) provided a gun to [a codefendant] used in the drive by shooting of Julio Tellez;

and 3) was in the back seat of the red [M]ustang at the time of the drive by

shooting.” Escoto went into detail to explain his version of events on the day of

the drive-by shooting but never identified which facts he was objecting to that

established his membership in a RICO conspiracy.

At sentencing, Escoto reiterated his objection to the paragraph in the PSR

stating he had provided the gun used in the shooting, had helped plan the shooting,

and was in the Mustang at the time of the shooting. The district court sustained the

objection and had Escoto’s name stricken from that paragraph of the PSR.

The district court sentenced Escoto to 144 months’ imprisonment, varying

upward by 84 months from the Guidelines range of 60 months. The district court

found this upward variance was needed to “reflect the actual seriousness of

[Escoto’s] offense, promote respect for the law, [and] provide just punishment for

the offense.” In justifying the upward variance, the court pointed to the fact that

Escoto was “an active and aggressive accessory after the fact to a murder and a

perpetrator of misprision of felony murder.” The district court noted that “credible

trial evidence” supported the assertion that Escoto was in the Mustang at the time

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of the shooting, but stated that the variance was warranted even “based on Escoto’s

claimed version of the facts.” The district court observed that the Sentencing

Guidelines did not adequately reflect the seriousness of the crime that the arson

was meant to conceal, noting that the “guidelines here would be the same if the

Defendant stole eggs and burned down the ramshackle chicken coop to hide his

crime.” The court also reasoned that the variance was required to reflect the

“cavalier manner of the arson,” as evidenced by the fact that Escoto “first enjoyed

driving ‘donuts’” in the Mustang before burning it. The district court noted that

Escoto was “an active member in a racketeering enterprise that committed myriad

violent, armed crimes and drug trafficking,” and stated that the variance was

necessary to deter others in Escoto’s community from engaging in the same

behavior and to protect the public from Escoto. Finally, the district court noted

that Escoto “has a Criminal History category of IV and lengthy prison history at a

young age” which supported the need for an upward variance that would “protect

the public.”

A number of other people were convicted and sentenced for conduct related

to the drive-by shooting, arson, and racketeering enterprise. John Cintron, who

was a minor at the time of the offense, pled guilty to one count of murder in aid of

racketeering and one count of arson and was sentenced to 48 months’

imprisonment for those crimes. Jesse Rodriguez pled guilty to racketeering

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conspiracy, drug conspiracy, and using a drug premises and was sentenced to 37

months’ imprisonment. Phillip Uscanga pled guilty to arson and was sentenced to

144 months’ imprisonment. Three others were tried and convicted by a jury of

RICO, drug-distribution, murder in aid of racketeering and various other offenses.

Escoto timely appealed his sentence.

II.

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

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). “The party

challenging the sentence bears the burden of establishing that the sentence is

unreasonable in light of the record and the § 3553(a) factors.” United States v.

Early, 686 F.3d 1219, 1221 (11th Cir. 2012).

When reviewing the substantive reasonableness of a sentence, we consider

“the totality of the circumstances,” including the extent of any variance from the

Sentencing Guidelines. Shaw, 560 F.3d at 1237. A sentence may be substantively

unreasonable if it was selected arbitrarily, based upon impermissible § 3553(a)

factors, or if the district court failed to consider pertinent § 3553(a) factors. United

States v. Pugh, 515 F.3d 1179, 1191–92 (11th Cir. 2008). Nonetheless, we will

only remand for resentencing when “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

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reasonable sentences dictated by the facts of the case.” Id. at 1191 (quotation

marks omitted).

Escoto argues that his sentence is substantively unreasonable for two

reasons. First, he argues that the district court relied on impermissible facts when

it varied his sentence upward by 84 months. Second, he argues the district court

improperly analyzed the § 3553(a) factors. We address each in turn.

A.

Escoto claims the district court justified the considerable upward variance in

his sentence based on facts that have no support in the record. Escoto says that the

district court improperly relied on two sets of facts: (1) those indicating that Escoto

was involved in planning and executing the Tellez murder; and (2) those indicating

that Escoto participated in a racketeering conspiracy.

This record does not support Escoto’s claim that the district court relied on

evidence linking Escoto to the planning and execution of the Tellez murder.

Escoto points to statements in the district court’s order expressing skepticism about

Escoto’s version of events. But the district court clearly stated it was setting aside

any doubts on this point when it explained that “[e]ven viewed in a light most

favorable to the Defendant and based on Escoto’s claimed version of the facts,” the

upward variance was warranted. The district court sustained Escoto’s objection to

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the facts in the PSR about his participation in the Tellez murder and never cited

them as a reason supporting the upward variance.

In contrast, the district court did cite Escoto’s membership “in a racketeering

enterprise that committed myriad violent, armed crimes and drug trafficking” as

supporting the upward variance. The district court relied on “all the evidence”

from the PSR and the codefendants’ trial for the facts connecting Escoto to the

racketeering conspiracy. Escoto argues that the district court could not rely on

these sources to support the upward variance.

A sentencing court may rely on undisputed statements contained in a PSR.

United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (per curiam). When a

defendant objects to the factual basis for the sentence, the burden shifts to the

government to establish the disputed fact. Id. But the challenge to the facts “must

be asserted with specificity and clarity”; otherwise any objection to those facts “is

waived.” Id. Escoto did not object to the numerous paragraphs in the PSR that

recite facts relating to his participation in the racketeering conspiracy. He objected

only to the paragraph that stated he helped to plan and was in the Mustang at the

time of the Tellez murder, an objection that the district court sustained. Escoto

says he did not need to object to the other facts because the PSR had “simply

regurgitated” the dismissed counts against him. Escoto also says he sufficiently

objected to these facts in his filing responding to the district court’s sentencing

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memorandum. But in that filing, Escoto makes only a broad, conclusory objection

to any facts establishing that he “was a member of a RICO conspiracy.” 1 He never

addresses which facts in the PSR that establish his membership in the racketeering

enterprise are supposedly incorrect. Because Escoto did not object to these facts

“with specificity and clarity,” he waived his objection, and the district court was

entitled to rely upon them at sentencing. See id.

Further, a sentencing court may rely on evidence from a third party’s trial so

long as the defendant is given the opportunity to rebut that evidence. United States

v. Castellanos, 904 F.2d 1490, 1496 (11th Cir. 1990). The district court explicitly

put Escoto on notice that it was relying on evidence from his codefendants’ trial

when it filed its own sentencing memorandum in which it cited that evidence for

the proposition that Escoto was a member of the racketeering enterprise. On this

record, the district court did not err in relying on evidence from Escoto’s

codefendants’ trial.

B.

Escoto next argues the district court did not properly analyze the § 3553(a)

factors. Although sentencing courts are required to consider the § 3553(a) factors,

see Chavez-Meza v. United States, 585 U.S. ___, 138 S. Ct. 1959, 1963 (2018), the

1 This contrasts with the way Escoto provided specific and detailed objections to the facts in the PSR and sentencing memorandum placing him in the Mustang at the time of the Tellez murder. 9 USCA11 Case: 20-11048 Date Filed: 02/08/2021 Page: 10 of 13

district court does not have to explicitly discuss each factor it is required to

consider, United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). The

record need only indicate that the district court considered some of the factors. See

United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007) (recognizing the

record indicated the district court “did, in fact, consider a number of the sentencing

factors”). Further, the “weight to be accorded 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). Escoto says the district court improperly analyzed the §

3553(a) factors in different ways. We address them in turn.

Escoto argues the district court failed to consider the “nature and

circumstances” of the arson. But the district court determined that the Sentencing

Guidelines range did not account for the “seriousness of the offense” that the arson

was intended to conceal, noting that “[t]he sentencing guidelines here would be the

same if the Defendant stole eggs and burned down the ramshackle chicken coop to

hide his crime.” See 18 U.S.C. § 3553(a)(2)(A). The district court also reasoned

that the “cavalier manner of the arson,” evidenced by Escoto driving “donuts” in

the Mustang before burning it, also justified the upward variance. Notably, Escoto

conceded that the Guidelines range of 60 months’ imprisonment might not be

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sufficient to reflect the seriousness of the crime that the arson was meant to

conceal and would be “willing to accept” an upward variance based on that factor.

Escoto says the district court improperly varied upward to “send a message”

to the broader community. But § 3553(a) requires the district court to consider

“deterrence to criminal conduct” when imposing a sentence. 18 U.S.C.

§ 3553(a)(2)(B). In other words, § 3553 recognizes the importance of using a

sentence to send a message to the broader community about the relevant offense.

And the district court determined that this upward variance was necessary in order

to “provide deterrence to others.” Therefore, the district court was simply

considering a factor it was required to consider.

Escoto claims the district court failed to consider his criminal history in

imposing his sentence, which is one of the § 3553(a) factors. See 18 U.S.C.

§ 3553(a)(1). But the district court did note that Escoto “has a Criminal History

category of IV and lengthy prison history at a young age” and reasoned that this

history supported the need for an upward variance that would “protect the public.”

See 18 U.S.C. § 3553(a)(2)(C).

Similarly, Escoto claims the district court “wholly cast[] aside the

consideration of the guidelines” in imposing the 144-month sentence, even though

the Guidelines range is one of the § 3553(a) factors. See 18 U.S.C. § 3553(a)(4).

But the district court expressly noted that Escoto’s Guidelines range was 60

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months and then explained at some length why it was varying upward from that

sentence. This shows us that the district court did consider the Guidelines range in

sentencing Escoto.

Escoto also asserts that his sentence is unreasonably disparate from the

sentences of his codefendants, which goes against the “need to avoid unwarranted

sentence disparities among defendants.” 18 U.S.C. § 3553(a)(6). But the

purported disparities are easily attributable to the different circumstances of the

individual defendants. 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)). Escoto complains that Cintron,

who pleaded guilty to murder in aid of racketeering in addition to arson, received a

lower sentence. But Cintron was a juvenile at the time of the offense, and this put

him in a markedly different position from Escoto. Rodriguez, another comparator

that Escoto points to, pled guilty to only racketeering and drug counts and did not

plead guilty to arson. Each of these facts easily accounts for Rodriguez’s lower

sentence. Escoto also argues that imposing the same sentence on him and Uscanga

is a disparity because Uscanga actually participated in the Tellez murder. But it is

clear from the district court’s order that, in the end, the district court weighed more

heavily the seriousness of the offense the arson was meant to conceal and both

defendants’ participation in the racketeering enterprise. Without more, we are not

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entitled to “substitute our judgment” for the district court’s when it comes to the

“weight to be accorded any given § 3553(a) factor.” Amedeo, 487 F.3d at 832. 2

AFFIRMED.

2 Escoto also argues that his case should be remanded to a different district court judge for re- sentencing. Because we affirm Escoto’s sentence, we need not reach that issue. 13