USA v. Elber Barahona Gomez

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11955
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELBER BARAHONA GOMEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00307-SDM-TGW-1
____________________
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2 Opinion of the Court 21-11955
Before NEWSOM, LAGOA, and LUCK, Circuit Judges.
PER CURIAM:
Elber Barahona Gomez appeals his total sentence of
168 months’ imprisonment after he pleaded guilty to conspiracy to
possess, and aiding and abetting the possession of, five kilograms
or more of cocaine with the intent to distribute it, while aboard a
vessel subject to the jurisdiction of the United States. Gomez ar-
gues that the district court’s sentence is substantively unreasonable
because it determined his sentence without adequately considering
the 18 U.S.C. § 3553(a)(2) factors, resulting in a sentence that, ac-
cording to him, was greater than necessary. After careful review,
we affirm.
When reviewing for substantive reasonableness, we con-
sider the totality of the circumstances under a deferential abuse-of-
discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007).
Section 3553(a) of Title 18 requires a district court to impose a sen-
tence that is sufficient, but not greater than necessary, to comply
with the purposes listed under § 3553(a)(2), including the need to
reflect the seriousness of the offense; promote respect for the law;
provide just punishment; deter criminal conduct; protect the pub-
lic; and provide educational and vocational training, medical care,
and other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2)(A)–(D). Other § 3553(a) factors include the
nature and circumstances of the offense, the history and character-
istics of the defendant, the kinds of sentences available, the
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21-11955 Opinion of the Court 3
Sentencing Guidelines, the need to avoid unwarranted sentencing
disparities, and the need to provide restitution to victims.
Id. (a)(1),
(3)–(7).
The party challenging the sentence bears the burden of es-
tablishing its unreasonableness based on the facts of the case and
the 18 U.S.C. § 3553(a) factors.
United States v. Shabazz, 887 F.3d
1204, 1224 (11th Cir. 2018). More generally, a district court abuses
its discretion when it (1) fails to consider relevant factors that were
due significant weight, (2) gives significant weight to an improper
or irrelevant factor, or (3) commits a clear error of judgment in
considering proper factors.
United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010) (
en banc).
We have emphasized that we must give due deference to
the district court to consider and weigh the proper sentencing fac-
tors.
Shabazz, 887 F.3d at 1224. The district court does not have
to give all the factors equal weight and is given discretion to attach
great weight to one factor over another.
United States v. Rosales-
Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). Along with the
§ 3553(a) factors, the district court should also consider the partic-
ularized facts of the case and the guideline range.
Id. at 1259–60.
However, it maintains discretion to give heavier weight to any of
the § 3553(a) factors or combination of factors than to the guideline
range.
Id. at 1259.
The district court also has wide discretion to decide whether
the § 3553(a) factors justify a variance.
Gall, 552 U.S. at 51. When
rejecting a request for a variance and imposing a guideline
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4 Opinion of the Court 21-11955
sentence, the sentencing judge need not issue a lengthy explanation
so long as the judge considered the parties’ arguments and the con-
text and record indicated the reasoning behind his conclusion.
Irey,
612 F.3d at 1195.
We do not apply a presumption of reasonableness to sen-
tences within the guideline range, but we ordinarily expect such a
sentence to be reasonable.
United States v. Stanley, 739 F.3d 633,
656 (11th Cir. 2014). We have held that we will only vacate a sen-
tence based on substantive unreasonableness if 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 arriv-
ing at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.
Irey, 612 F.3d at 1190.
Here, Gomez’s sentence is not substantively unreasonable.
The district court explicitly and extensively examined each of the
18 U.S.C. § 3553(a)(2) factors in deciding on a sentence that was
sufficient but not greater than necessary, and there is no indication
that the district court failed to consider relevant factors that were
due significant weight, gave significant weight to an improper or
irrelevant factor, or committed a clear error of judgment in consid-
ering proper factors.
Irey, 612 F.3d at 1189.
Specifically, the district court considered § 3553(a)(2)(A)
when it stated that its sentence must enhance respect for the law,
including by being neither too harsh nor too lenient and by ensur-
ing that the law is not brought into disrepute. The district court
also considered § 3553(a)(2)(B) when it explained that the sentence
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21-11955 Opinion of the Court 5
must have a deterrent effect to discourage others from committing
similar crimes. Additionally, the district court considered
§ 3553(a)(2)(C) when it explained that its sentence must protect the
community from drugs that could be brought into the United
States and stated that cocaine is destructive and leads to crime and
addiction. Finally, the district court considered § 3553(a)(2)(D)
when it noted that Gomez wanted to continue his education while
incarcerated and recommended that he be housed in a facility that
offers vocational education programs for Spanish speakers. In ad-
dition to the factors in § 3553(a)(2), the district court considered the
nature and circumstances of the offense and Gomez’s history and
characteristics, in accordance with § 3553(a)(1), when it noted that
the offense was part of a large-scale drug transportation scheme
and considered the conditions of Gomez’s hometown, his level of
education, and his family’s circumstances.
In view of the discretion that the district court is granted
when considering the factors in § 3553(a), Gomez’s arguments fail
to demonstrate that the district court abused its discretion by not
varying downward.
Shabazz, 887 F.3d at 1224. The district court
expressly provided its analysis for each of the § 3553(a)(2) factors,
stated that it considered all § 3553(a) factors, and considered each
of the parties’ arguments.
See id. Moreover, the district court im-
posed a sentence within the guideline range, which we have stated
ordinarily indicates that a sentence is reasonable.
Stanley, 739 F.3d
at 656.
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6 Opinion of the Court 21-11955
And although Gomez asserts in his initial brief on appeal that
the district court failed to consider how COVID-19 affected Colom-
bia and the overall economic status of Colombia, the district court
did state that it was familiar with and considered the conditions of
his hometown in Colombia. Furthermore, Gomez did not provide
any evidence to the district court regarding the COVID-related ar-
guments that he makes in his brief to this Court, and some of the
evidence that he now cites was not even available at the time of his
sentencing. A district court does not abuse its discretion by not
considering evidence in fashioning a sentence that was not put be-
fore it.
Gall, 552 U.S. at 51.
For the foregoing reasons, the district court did not abuse its
discretion, and Gomez’s sentence is substantively reasonable.
AFFIRMED.
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