United States v. Sergio Viera

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 20, 2018
• Docket: 17-14448
• Status: Unpublished

Opinion

Case: 17-14448 Date Filed: 06/20/2018 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14448 Non-Argument Calendar ________________________

D.C. Docket No. 8:17-cr-00152-SDM-TGW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO VIERA,

Defendant-Appellant.

________________________

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

(June 20, 2018)

Before MARCUS, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

Sergio Viera appeals his 73-month sentence imposed after he pled guilty to

being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). On appeal, he argues that: (1) the district court substantively erred by Case: 17-14448 Date Filed: 06/20/2018 Page: 2 of 7

relying on an improper factor when determining his sentence; (2) the court erred by

failing to adequately consider his Sentencing Guideline range; and (3) the court

procedurally erred by failing to sufficiently explain his sentence. After careful

review, we affirm.

We normally review the sentence a district court imposes for

“reasonableness,” which “merely asks whether the trial court abused its

discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008)

(quotation omitted). But if there was no objection to the procedural reasonableness

during sentencing, we review for plain error. United States v. Vandergrift, 754

F.3d 1303, 1307 (11th Cir. 2014). “To preserve an issue for appeal, a general

objection or an objection on other grounds will not suffice.” United States v.

Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir. 1995). “The purpose of eliciting

objections following the imposition of sentence is twofold. First, an objection, if

well made, may permit the court to cure an error on the spot -- perhaps making an

appeal unnecessary. Second, by eliciting the parties’ objections, the trial judge

narrows, and sharpens, the issues presentable on appeal.” United States v. Snyder,

941 F.2d 1427, 1428 (11th Cir. 1991). To establish plain error, the defendant must

show (1) an error, (2) that is plain, and (3) that affected his substantial rights.

United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If the defendant

satisfies these conditions, we may exercise our discretion to recognize the error

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only if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. The party challenging the sentence bears the burden of showing

it is unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

In reviewing sentences for reasonableness, we perform two steps. Pugh, 515

F.3d at 1190. First, we “‘ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

[factors listed in 18 U.S.C. § 3553(a)], selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence -- including an

explanation for any deviation from the Guidelines range.’” Id. (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)).1

If we conclude that the district court did not procedurally err, we consider

the “substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard,” based on the “totality of the circumstances.” Id. (quotation

omitted). “[W]e will not second guess the weight (or lack thereof) that the [court]

accorded to a given [§ 3553(a)] factor . . . as long as the sentence ultimately

1 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a). 3 Case: 17-14448 Date Filed: 06/20/2018 Page: 4 of 7

imposed is reasonable in light of all the circumstances presented.” United States v.

Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis

omitted). However, a court may abuse its discretion if it (1) fails to consider

relevant factors that are due significant weight, (2) gives an improper or irrelevant

factor significant weight, or (3) commits a clear error of judgment by balancing a

proper factor unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.

2010) (en banc). Also, a court’s unjustified reliance on any one § 3553(a) factor

may be a symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d

1285, 1292 (11th Cir. 2006). We are highly deferential to district court sentencing

determinations, and will not reverse a sentence, even where it is outside the

Guideline range, so long as it is “in the ballpark” of permissible outcomes based on

all the § 3553(a) factors. United States v. Rosales-Bruno, 789 F.3d 1249, 1251,

1254, 1256 (11th Cir. 2015) (affirming a sentence that was 60 months’ higher than

the high-end of the defendant’s Guideline range, but 33 months’ below the

statutory maximum). When the appellant has shown that the sentencing court

relied on an invalid factor, “a remand is appropriate unless the reviewing court

concludes, on the record as a whole, that the error was harmless, i.e., that the error

did not affect the district court’s selection of the sentence imposed.” United States

v. Kendrick, 22 F.3d 1066, 1068 (11th Cir. 1994) (quotations omitted).

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Here, any procedural errors alleged by Viera are reviewed for plain error

only. While Viera said, at the close of sentencing, that he would “object

procedurally and substantively,” this objection did not state the particular grounds

he was basing his objection on, and consequently, lacks the necessary specificity to

preserve the issue on appeal. Gallo-Chamorro, 48 F.3d at 507. Indeed, because

Viera had previously withdrawn his objections to his Guidelines calculations, his

general objection failed to apprise the district court of any errors in a way that they

could be corrected on the spot. Snyder, 941 F.2d at 1428.

Reviewing for plain error, we conclude that Viera has not shown that the

district court procedurally erred in imposing his sentence. As the record reveals,

the district court explained, at length, why it felt its upward variance was

appropriate in Viera’s case, citing specifically its need to take Viera’s criminal

history into account, protect the public, and deter Viera from committing additional

crimes. Viera even acknowledges that the court did so in his brief. Thus, we

cannot say that the district court committed any procedural error, much less

committed plain error, in imposing the sentence.

As for whether the district court substantively erred, we are unpersuaded by

Viera’s claim that the district court improperly relied on an irrelevant factor --

namely, “deference to” Viera’s previous five-year sentence. Rather, the district

court specifically relied on relevant, statutory factors in imposing the sentence in

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this case. In particular, the court noted the strong need to protect the public given

Viera’s long history of violence and use of firearms -- as the record shows, after

being released from prison following his conviction for racketeering, Viera

committed numerous violent offenses, including attempted murder with a firearm.

The district court also noted the need to promote respect for the law and to

effectively deter Viera from committing further crimes, where his lack of respect

for the law was “palpable.” It is true that the court acknowledged Viera’s previous

sentence, and the need for his new sentence to reflect an “increment” beyond his

prior sentence, but these words do not indicate the court’s need to show deference

to an earlier sentence, or that the court was bound by a sentencing “floor” a

previous court had established. Rather, the record suggests that the district court’s

overriding concern was to protect the public in light of Viera’s violent, escalating

criminality where his previous sentence evidently had not deterred him. Indeed,

the district court noted an escalation of Viera’s criminality, and, based in part on

the disparity between the circumstances of his prior offenses and his instant

offense, reasonably determined that an incrementally longer sentence was

appropriate under the circumstances.

Nor did the district court improperly fail to consider the Sentencing

Guidelines. The court noted specifically that it had considered them, and then

determined that, based on all the statutory factors, a sentence that was 26 months’

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higher than the high-end of Viera’s Guideline range was appropriate. Considering

Viera’s considerable and violent criminal history, we cannot say that this variance

is outside the “ballpark” of permissible outcomes. Rosales-Bruno, 789 F.3d at

1254. Accordingly, we affirm his sentence.

AFFIRMED.