Case: 18-10489 Date Filed: 10/03/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10489 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-20459-MGC-1
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
YOVANNY ANTHONY VARGAS, a.k.a. Nani,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(October 3, 2018)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Yovanny Vargas appeals his sentence after pleading guilty to one count of
possession of a firearm after having been convicted of a felony, in violation of 18 Case: 18-10489 Date Filed: 10/03/2018 Page: 2 of 7
U.S.C. § 922(g)(1). Vargas had brought a stolen gun with him when he went to
sell a small amount of crack cocaine. He and the buyer argued over cost, and
Vargas grabbed the gun from his waistband and fired two shots at the buyer’s legs,
intending to “make him dance a little,” not to hit him. However, the second bullet
struck the buyer’s thigh. Vargas fled the scene and ditched the gun under a car.
The gun was found and turned over to police the following day, and Vargas turned
himself in to police the day after that.
Using the Sentencing Guidelines, the district court scored this conduct and
Vargas’s criminal history and calculated a total offense level of 27 and a criminal
history category of V. 1 This established a guideline range of 120 to 150 months of
imprisonment, which was reduced to a “range” of 120 months due to the statutory
maximum sentence of 10 years. See 18 U.S.C. § 924(a)(2). Neither party objected
to the guideline calculations. The district court sentenced Vargas to 110 months,
emphasizing the seriousness of the offense conduct and the need for the sentence to
protect the public. Vargas now appeals that sentence.
We review a sentence under a deferential abuse-of-discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007). In conducting this review, we ensure that
1 The district court assigned Vargas a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2). He received a two-level enhancement under § 2K2.1(b)(4)(A) because the gun was stolen and a four-level enhancement under § 2K2.1(b)(6)(B) because he used the gun while committing another felony offense. After a three-level reduction for acceptance of responsibility under § 3E1.1(a) and (b), the total offense level was 27. He had a total of 12 criminal history points, which placed him into criminal history category V. 2 Case: 18-10489 Date Filed: 10/03/2018 Page: 3 of 7
the sentence is both free from significant procedural error and substantively
reasonable. Id.
The district court at sentencing is tasked with imposing a “sentence
sufficient, but not greater than necessary,” to comply with the purposes of
sentencing set forth in 18 U.S.C. § 3553(a)(2). On its way to imposing sentence,
the court must do several things. It must accurately calculate the guideline range,
allow the parties to argue for whatever sentence they deem appropriate, consider
all of the factors listed in § 3553(a), make an individualized assessment based on
the facts presented, and then adequately explain the chosen sentence. Gall, 552
U.S. at 49–50. The failure to do any of these things may constitute “significant
procedural error” warranting reversal. Id. at 51.
If the sentence is procedurally sound, we then evaluate the substantive
reasonableness of the sentence by considering the totality of the circumstances and
whether the sentence achieves the sentencing purposes stated in § 3553(a). Id.
Ordinarily, “we will reverse a sentence as substantively unreasonable only if we
are left with the definite and firm conviction that the [d]istrict [c]ourt committed a
clear error of judgment in weighing the factors by arriving at a sentence outside the
range of reasonable sentences dictated by the facts of the case.” United States v.
Alberts, 859 F.3d 979, 985 (11th Cir. 2017) (quotation marks omitted). A district
court’s unjustified reliance on any one § 3553(a) factor may be indicative of an
3 Case: 18-10489 Date Filed: 10/03/2018 Page: 4 of 7
unreasonable sentence. United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.
2006). The party challenging the sentence bears the burden of showing that the
sentence is unreasonable in light of the record, the § 3553(a) factors, and the
substantial deference afforded sentencing courts. United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015).
Vargas contends that his sentence is both procedurally and substantively
unreasonable. He argues that the district court procedurally erred because its
explanation fails to show that it considered significant mitigating factors, including
his intellectual and mental impairment, his heavy and sustained drug and alcohol
abuse, and his complete and consistent remorse for his conduct. Vargas says that
the court’s explanation is insufficient for meaningful review because it does
indicate what weight the court gave these factors. He further argues that, in light
of these same mitigating factors, the sentence is substantively unreasonable.
The adequacy of the district court’s explanation depends upon the
circumstances of the case, and “[t]he law leaves much, in this respect, to the
judge’s own professional judgment.” Rita v. United States, 551 U.S. 338, 356
(2007). “A sentencing court is not required to incant the specific language used in
the guidelines or articulate its consideration of each individual § 3553(a) factor, so
long as the record reflects the court’s consideration of many of those factors.”
United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010) (quotation marks
4 Case: 18-10489 Date Filed: 10/03/2018 Page: 5 of 7
omitted). The court must set forth enough to satisfy us that it “has considered the
parties’ arguments and has a reasoned basis for exercising [its] own legal
decisionmaking authority.” Id. (quotation marks omitted).
Here, Vargas has not shown that the district court committed significant
procedural error. The court listened to the parties’ arguments regarding an
appropriate sentence, including Vargas’s arguments in mitigation, and heard from
Vargas, who expressed remorse for his conduct. The court then imposed a
sentence that clearly reflected consideration of the § 3553(a) factors. The court
explained that Vargas’s criminal history was significant. It further stated that,
while much of his prior criminal activity was “petty” and connected to his drug
use, his criminal activity appeared not only to be escalating but escalating into
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Case: 18-10489 Date Filed: 10/03/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10489 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-20459-MGC-1
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
YOVANNY ANTHONY VARGAS, a.k.a. Nani,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(October 3, 2018)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Yovanny Vargas appeals his sentence after pleading guilty to one count of
possession of a firearm after having been convicted of a felony, in violation of 18 Case: 18-10489 Date Filed: 10/03/2018 Page: 2 of 7
U.S.C. § 922(g)(1). Vargas had brought a stolen gun with him when he went to
sell a small amount of crack cocaine. He and the buyer argued over cost, and
Vargas grabbed the gun from his waistband and fired two shots at the buyer’s legs,
intending to “make him dance a little,” not to hit him. However, the second bullet
struck the buyer’s thigh. Vargas fled the scene and ditched the gun under a car.
The gun was found and turned over to police the following day, and Vargas turned
himself in to police the day after that.
Using the Sentencing Guidelines, the district court scored this conduct and
Vargas’s criminal history and calculated a total offense level of 27 and a criminal
history category of V. 1 This established a guideline range of 120 to 150 months of
imprisonment, which was reduced to a “range” of 120 months due to the statutory
maximum sentence of 10 years. See 18 U.S.C. § 924(a)(2). Neither party objected
to the guideline calculations. The district court sentenced Vargas to 110 months,
emphasizing the seriousness of the offense conduct and the need for the sentence to
protect the public. Vargas now appeals that sentence.
We review a sentence under a deferential abuse-of-discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007). In conducting this review, we ensure that
1 The district court assigned Vargas a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2). He received a two-level enhancement under § 2K2.1(b)(4)(A) because the gun was stolen and a four-level enhancement under § 2K2.1(b)(6)(B) because he used the gun while committing another felony offense. After a three-level reduction for acceptance of responsibility under § 3E1.1(a) and (b), the total offense level was 27. He had a total of 12 criminal history points, which placed him into criminal history category V. 2 Case: 18-10489 Date Filed: 10/03/2018 Page: 3 of 7
the sentence is both free from significant procedural error and substantively
reasonable. Id.
The district court at sentencing is tasked with imposing a “sentence
sufficient, but not greater than necessary,” to comply with the purposes of
sentencing set forth in 18 U.S.C. § 3553(a)(2). On its way to imposing sentence,
the court must do several things. It must accurately calculate the guideline range,
allow the parties to argue for whatever sentence they deem appropriate, consider
all of the factors listed in § 3553(a), make an individualized assessment based on
the facts presented, and then adequately explain the chosen sentence. Gall, 552
U.S. at 49–50. The failure to do any of these things may constitute “significant
procedural error” warranting reversal. Id. at 51.
If the sentence is procedurally sound, we then evaluate the substantive
reasonableness of the sentence by considering the totality of the circumstances and
whether the sentence achieves the sentencing purposes stated in § 3553(a). Id.
Ordinarily, “we will reverse a sentence as substantively unreasonable only if we
are left with the definite and firm conviction that the [d]istrict [c]ourt committed a
clear error of judgment in weighing the factors by arriving at a sentence outside the
range of reasonable sentences dictated by the facts of the case.” United States v.
Alberts, 859 F.3d 979, 985 (11th Cir. 2017) (quotation marks omitted). A district
court’s unjustified reliance on any one § 3553(a) factor may be indicative of an
3 Case: 18-10489 Date Filed: 10/03/2018 Page: 4 of 7
unreasonable sentence. United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.
2006). The party challenging the sentence bears the burden of showing that the
sentence is unreasonable in light of the record, the § 3553(a) factors, and the
substantial deference afforded sentencing courts. United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015).
Vargas contends that his sentence is both procedurally and substantively
unreasonable. He argues that the district court procedurally erred because its
explanation fails to show that it considered significant mitigating factors, including
his intellectual and mental impairment, his heavy and sustained drug and alcohol
abuse, and his complete and consistent remorse for his conduct. Vargas says that
the court’s explanation is insufficient for meaningful review because it does
indicate what weight the court gave these factors. He further argues that, in light
of these same mitigating factors, the sentence is substantively unreasonable.
The adequacy of the district court’s explanation depends upon the
circumstances of the case, and “[t]he law leaves much, in this respect, to the
judge’s own professional judgment.” Rita v. United States, 551 U.S. 338, 356
(2007). “A sentencing court is not required to incant the specific language used in
the guidelines or articulate its consideration of each individual § 3553(a) factor, so
long as the record reflects the court’s consideration of many of those factors.”
United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010) (quotation marks
4 Case: 18-10489 Date Filed: 10/03/2018 Page: 5 of 7
omitted). The court must set forth enough to satisfy us that it “has considered the
parties’ arguments and has a reasoned basis for exercising [its] own legal
decisionmaking authority.” Id. (quotation marks omitted).
Here, Vargas has not shown that the district court committed significant
procedural error. The court listened to the parties’ arguments regarding an
appropriate sentence, including Vargas’s arguments in mitigation, and heard from
Vargas, who expressed remorse for his conduct. The court then imposed a
sentence that clearly reflected consideration of the § 3553(a) factors. The court
explained that Vargas’s criminal history was significant. It further stated that,
while much of his prior criminal activity was “petty” and connected to his drug
use, his criminal activity appeared not only to be escalating but escalating into
violence. In this respect, the court noted that Vargas had conducted an armed drug
transaction and that he could have killed someone with a stray bullet. And in light
of that conduct and Vargas’s history of drug-related criminal activity, the court was
concerned about the possibility of future violent incidents.
These statements demonstrate the district court’s consideration of the nature
and circumstances of the offense, Vargas’s significant criminal history and drug
addiction, and the need for the sentence to reflect the seriousness of the offense and
to protect the public from further crimes by Vargas. See 18 U.S.C. § 3553(a)(1),
(2)(A), & (2)(C). While the court did not expressly reference the mitigating factors
5 Case: 18-10489 Date Filed: 10/03/2018 Page: 6 of 7
cited by Vargas, the record demonstrates that the court considered the parties’
arguments and the § 3553(a) factors and had a reasoned basis for imposing a
sentence of 110 months. See Ghertler, 605 F.3d at 1262.
Furthermore, that sentence is substantively reasonable. Vargas received a
sentence below the guideline range, which we ordinarily expect to be reasonable.
See United States v. Croteau, 819 F.3d 1293, 1309–10 (11th Cir. 2016) (“We do
not presume that a sentence falling within the guidelines range is reasonable, but
we ordinarily expect it to be so.”). And here, the most troubling aspects of
Vargas’s offense conduct were not directly accounted for in the guideline range.
As the district court emphasized, the offense conduct was extremely serious.
Vargas conducted an armed drug transaction during which he shot at another
person, striking his leg. Even accepting he did not intend to hit the victim, his
conduct was violent and reckless and carried with it the potential for serious
physical injury or death. Along with Vargas’s extensive criminal history, these
facts fully support the court’s decision to impose a sentence near the statutory
maximum yet below the guideline range in order to reflect the seriousness of the
offense conduct and to protect the public from further crimes by Vargas. The
district court’s decision to give greater weight to these factors than to the
mitigating factors cited by Vargas was well within the court’s discretion. See
Rosales-Bruno, 789 F.3d at 1254 (“The decision about how much weight to assign
6 Case: 18-10489 Date Filed: 10/03/2018 Page: 7 of 7
a particular sentencing factor is committed to the sound discretion of the district
court.” (quotation marks omitted)).
The record contradicts Vargas’s claim that the district court failed to conduct
an “individualized assessment” and relied too heavily on the potential but
unrealized consequences of his firing the gun at the victim. As we have noted
above, the court’s justification for the sentence clearly incorporated specific facts
about Vargas’s criminal history, his personal characteristics, and the nature and
circumstances of the offense. Nor did the court unreasonably focus on the
potential for an errant bullet to strike someone else. The court’s comments merely
reflect its justified concern about the seriousness of Vargas’s conduct and the
potential for future violent, criminal behavior.
In sum, given the substantial deference afforded sentencing courts, Vargas
has not shown “that the [d]istrict [c]ourt committed a clear error of judgment in
weighing the factors by arriving at a sentence outside the range of reasonable
sentences dictated by the facts of the case.” Alberts, 859 F.3d at 985.
Accordingly, we affirm Vargas’s sentence as both procedurally and substantively
reasonable.
AFFIRMED.