United States v. Victor Solorcino Tavia

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 23, 2018
• Docket: 18-10455
• Status: Unpublished

Opinion

Case: 18-10455 Date Filed: 08/23/2018 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10455 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cr-00222-CG-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR SOLORCINO TAVIA, a.k.a. Victor Solorcino-Tavia,

Defendant-Appellant.

________________________

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

(August 23, 2018)

Before NEWSOM, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 18-10455 Date Filed: 08/23/2018 Page: 2 of 5

Victor Solorzano-Tavia1 received a statutory-maximum 24-month sentence

for violating the terms of his supervised release. On appeal, he argues that his

sentence was greater than necessary and thus substantively unreasonable. We

disagree.

“We review the sentence imposed [by the district court] upon the revocation

of supervised release for reasonableness.” United States v. Vandergrift, 754 F.3d

1303, 1307 (11th Cir. 2014) (internal quotation marks, citation omitted). A district

court’s decision to exceed the guideline sentencing range is reviewed for an abuse

of discretion. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).

The party challenging the sentence bears the burden of showing that the sentence is

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

Upon finding that a defendant has violated a condition of supervised release,

a district court may revoke the term of supervised release and impose a term of

imprisonment after considering the following criteria: (1) the nature and

circumstances of the offense; (2) the history and characteristics of the defendant;

(3) the need for deterrence; (4) the need to protect the public; (5) the Sentencing

Guidelines and policy statements of the Sentencing Commission; (6) the need to

avoid unwarranted disparity among defendants; and (7) the need to provide

restitution to victims. See 18 U.S.C. § 3583(e) (cross-referencing § 3553(a)(1),

1 Solorzano’s name has been incorrectly spelled in lower court documents as “Solorcino.” 2 Case: 18-10455 Date Filed: 08/23/2018 Page: 3 of 5

(a)(2)(B)-(D), (a)(4)-(7)). When considering what sentence is substantively

reasonable regarding revocation of supervised release, the sentencing court should

“sanction primarily the defendant’s breach of trust, while taking into account, to a

limited degree, the seriousness of the underlying violation.” U.S.S.G. § 7A

Introduction 3(b). Additionally, the Guidelines advise that “any sentence of

imprisonment for a criminal offense that is imposed after revocation of probation

or supervised release be run consecutively to any term of imprisonment imposed

upon revocation.” U.S.S.G. § 7B1.3 n.4. We will only vacate a sentence if we are

convinced that the sentence falls beyond the reasonable range of sentences for a

given case. United States v. Irey, 612 F.3d 1160, 1189-90 (11th Cir. 2010) (en

banc).

Here, Solorzano has not met his burden of demonstrating that his sentence is

unreasonable. See Tome, 611 F.3d at 1378. First, it is undisputed that Solorzano

had, at the time of this trial, tried to illegally reenter the United States on seven

prior occasions, three of which had resulted in convictions. In imposing its

sentence, the court followed 18 U.S.C. § 3583(e) and considered, among other

things, the nature and circumstances of the offense, the history and characteristics

of the defendant, and the need for deterrence. The court remarked that this was

“the most egregious case of illegal reentry that [it had] seen,” and further explained

that it could see no way aside from a maximum sentence to impress upon

3 Case: 18-10455 Date Filed: 08/23/2018 Page: 4 of 5

Solorzano the need for him to obey the law and refrain from coming back to the

United States illegally. Tr. Trans. at 6, 12. Considering Solorzano’s record of

reentry, we cannot say that the district court abused its discretion in providing the

maximum statutory sentence. See Aguillard, 217 F.3d at 1320.

Solorzano also argues that it was inappropriate for the district court to

effectively sentence him to four years’ imprisonment for a single act of reentry.

Br. of Appellant at 6-7. The premise on which this argument relies is incorrect; the

court did not sentence Solorzano twice for the same conduct. Rather, the court

sentenced him first for illegal reentry, and then again—and separately—for

violating the terms of his supervised release. U.S.S.G. § 7A Introduction 3(b).

And, as noted above, the district court’s concurrent sentencing was in keeping with

the Guidelines’ suggestion. See U.S.S.G. § 7B1.3 n.4.

And finally, Solorzano insists that he was not previously notified of his

supervised release, thus warranting reversal. This argument also fails. It is

undisputed that the record before the sentencing court reflected that Solorzano had

been placed on supervised release following a prior conviction in Texas for illegal

reentry. It is also undisputed that a condition of Solorzano’s supervised release

was that he not reenter the United States illegally. While Solorzano disputes that

he was ever given notice of being placed on supervised release at all, he has not

proven that he lacked notice, nor has he provided any reason why the previous

4 Case: 18-10455 Date Filed: 08/23/2018 Page: 5 of 5

court’s records would be unreliable. Accordingly, Solorzano has failed to meet his

burden of showing that the court was unreasonable to rely on the official record of

the preceding court in imposing its sentence. Tome, 611 F.3d at 1378.

In light of Solorzano’s history—i.e., three prior convictions for illegal

reentry and at least eight illegal-reentry attempts—we conclude that his sentence

was substantively reasonable, and therefore that the district court did not abuse its

discretion. Accordingly, we affirm.

AFFIRMED.