USA v. Leonardo Anchico-Jiminez

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13459
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO ANCHICO-JIMENEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:05-cr-00365-JDW-AAS-5
____________________
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2 Opinion of the Court 21-13459
Before WILSON, J ORDAN and NEWSOM , Circuit Judges.
PER CURIAM:
Leonardo Anchico-Jimenez appeals his 30-month sentence
imposed upon revocation of his term of supervised release. He ar-
gues that his sentence was substantively unreasonable because the
cumulative effect of the 30-month sentence upon revocation of su-
pervised release, when added consecutively to his 210-month sen-
tence from the Southern District of Florida, is excessive and vio-
lates 18 U.S.C. §§ 3553(a) and 3583. After careful review, we affirm
the district court’s sentence.
I. Factual Background
In 2006, a district judge in the Middle District of Florida sen-
tenced Anchico-Jimenez to 144 months’ imprisonment followed by
5 years of supervised release for possession with intent to distribute
five kilograms or more of cocaine while onboard a vessel subject
to the jurisdiction of the United States, in violation of 46 App.
U.S.C. § 1903(a) and (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(1)(B)(ii),
and conspiracy to possess with intent to distribute five kilograms
or more of cocaine while on board a vessel subject to the jurisdic-
tion of the United States, in violation of 46 App. U.S.C. § 1903(a),
(g), and (j), and 21 U.S.C. § 960(b)(1)(B)(ii). Following his prison
term, he was deported to his native Colombia in 2016. The proba-
tion office did not actively supervise him after his deportation.
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21-13459 Opinion of the Court 3
In November 2019, a grand jury in the Southern District of
Florida indicted Anchico-Jimenez. In relevant part, his offenses in-
cluded conspiracy to possess with intent to distribute five kilo-
grams or more of a mixture and substance containing cocaine
while aboard a vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(a), (b) and
21 U.S.C. § 960(b)(1)(B), and possession with intent to distribute
five kilograms or more of a mixture and substance containing co-
caine while aboard a vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(a), (b), 18
U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B). The district court sen-
tenced him to 210 months’ imprisonment to be followed by 5 years
of supervised release.
The probation office petitioned the Middle District of Flor-
ida to issue a warrant for four violations of supervised release,
based on his indictment in the Southern District of Florida. At the
revocation hearing, Anchico-Jimenez admitted to the first super-
vised release violation, his conviction of conspiracy to possesses
with intent to distribute, and the government dismissed the re-
maining violations. The government informed the court that the
advisory guidelines range for the supervised release violations was
24 to 30 months’ imprisonment, the statutory maximum sentence
was 60 months’ imprisonment, and the court could impose a sen-
tence to run at the same time as his current sentence (concurrently)
or to begin after he completed the sentence imposed by the South-
ern District of Florida (consecutively).
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4 Opinion of the Court 21-13459
The district court sentenced Anchico-Jimenez to 30 months’
imprisonment to run consecutively to his term imposed by the
Southern District of Florida. The court stated that Anchico-
Jimenez was not deterred by his previous 12-year sentence and thus
a consecutive sentence reflects the fact that he committed essen-
tially the same offense for which he was originally sentenced. An-
chico-Jimenez appeals the court’s sentence and contends that given
the surrounding circumstances—namely, his 210-month sentence
in the Southern District of Florida—adding 30 months consecu-
tively for the same conduct is excessive, violates 18 U.S.C. § 3553(a)
and (b), and is thus substantively unreasonable.
II. Standard of Review
We review the reasonableness of a sentence imposed on rev-
ocation of supervised release for an abuse of discretion.
United
States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). The
party challenging the sentence bears the burden to show that the
sentence is unreasonable in light of the record and the 18 U.S.C.
§ 3553(a) factors.
United States v. Tome, 611 F.3d 1371, 1378 (11th
Cir. 2010).
III. Analysis
Where a district court revokes a term of supervised release,
it may require the defendant to serve in prison all or part of the
term of supervised release authorized by statute for the offense that
resulted in such term of supervised release. 18 U.S.C. § 3583(e)(3).
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21-13459 Opinion of the Court 5
The decision to impose a consecutive sentence upon revo-
cation is within a district court’s discretion.
United States v. Qui-
nones, 136 F.3d 1293, 1295 (11th Cir. 1998) (per curiam). The Sen-
tencing Guidelines provide that a “term of imprisonment imposed
upon revocation of . . . supervised release shall be ordered to be
served consecutively to any sentence of imprisonment that the de-
fendant is serving, whether or not the sentence of imprisonment
being served resulted from the conduct that is the basis of the rev-
ocation of supervised release.” U.S.S.G. § 7B1.3(f). The sentence
imposed upon revocation of supervised release is intended to sanc-
tion the breach of trust that results from failing to abide by the con-
ditions of the court-ordered supervision and this sanction should
be consecutive to any sentence imposed for the new conduct.
U.S.S.G. Ch. 7, Pt. A, intro. 3(b). A term of imprisonment that is
imposed on a defendant who is already subject to an undischarged
term of imprisonment may run concurrently or consecutively, but
the default rule is that multiple terms of imprisonment imposed at
different times run consecutively unless the court orders that they
shall run concurrently. 18 U.S.C. § 3584(a), (b). However, a court
must consider the § 3553(a) factors in determining whether to or-
der a sentence to run concurrently or consecutively. 18 U.S.C.
§ 3584(b);
United States v. Ballard, 6 F.3d 1502, 1505 (11th Cir.
1993).
We will reverse only if “left with the definite and firm con-
viction that the district court committed a clear error of judgment
in weighing the § 3553(a) factors by arriving at a sentence that lies
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6 Opinion of the Court 21-13459
outside the range of reasonable sentences dictated by the facts of
the case.”
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)
(en banc). The decision regarding how much weight to assign a
particular factor is committed to the discretion of the district court.
United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir.
2015). The district court is not required to state on the record that
it has explicitly considered each of the § 3553(a) factors or discuss
each of them.
United States v. Kuhlman, 711 F.3d 1321, 1326 (11th
Cir. 2013). An acknowledgment by the district court that it has
considered the § 3553(a) factors is sufficient.
United States v.
Turner, 474 F.3d 1265, 1281 (11th Cir. 2007).
At the outset, we must note that Anchico-Jimenez chal-
lenges only the decision that his 30-month sentence be applied con-
secutively. His position that a consecutive sentence is substantially
unreasonable, however, rests on a faulty premise. He argues that
30 months’ imprisonment consecutive to a 210-month term equals
240-months (20 years) imprisonment for a “singular violation.” Be-
cause 240 months’ imprisonment is greater than necessary to
achieve and satisfy the statutory mandate of federal sentencing and
is substantially unreasonable when measured against the totality of
the circumstances, he argues, this court should vacate the district
court’s decision. But, the 240-month cumulative sentence results
from two separate violations—his criminal violations (for which
the Southern District of Florida sentenced him to 210 months) and
his breach of the courts trust in violation of the terms of supervised
release imposed by the Middle District of Florida (for which the
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21-13459 Opinion of the Court 7
court below sentenced him to 30 months). Before us today is only
a question of reasonableness in the Middle District of Florida’s 30-
month sentence for violation of supervised release.
First, Anchico-Jimenez argues that a consecutive sentence is
substantially unreasonable because it cumulatively results in a
greater sentence than necessary to achieve and satisfy the goal of
federal sentencing. This argument fails because the Guidelines
clearly order courts to issue a consecutive sentence upon revoca-
tion of supervised release. U.S.S.G. § 7B1.3(f), 18 U.S.C. § 3584(a).
Further, the court found that in light of the revocation, the §
3353(a) factors suggest that a significant term of consecutive im-
prisonment is appropriate because Anchico-Jimenez essentially
committed the same offense, has no respect for the law, and has
not been deterred. Thus, the court properly weighed the § 3353(a)
factors in deciding whether to apply a consecutive sentence.
Bal-
lard, 6 F.3d at 1505.
Second, Anchico-Jimenez contends that the circum-
stances—having to serve 210 months’ imprisonment for the same
conduct and deportation after release—makes a consecutive sen-
tence substantively unreasonable. This argument fails for two rea-
sons. First, as mentioned above, the 30-month sentence does not
punish the same conduct as the 210-month sentence, and the
Guidelines order a consecutive sentence in this instance. Second,
the district court was within its discretion to give the outcome of
the § 3553(a) factors more weight than Anchico-Jimenez’s pending
deportation.
Rosales-Bruno, 789 F.3d at 1254. Thus, the
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8 Opinion of the Court 21-13459
circumstances relied on to demonstrate an unreasonable sentence
do not apply here.
Anchico-Jimenez has not shown that the district court
abused its discretion in imposing a consecutive 30-month sentence
upon revocation of supervised release. Moreover, the district court
did not abuse its discretion by concluding that a consecutive sen-
tence was warranted by the 18 U.S.C. § 3553(a) factors because his
new criminal conduct was similar to the drug importation convic-
tion for which he was serving his supervised release term.
AFFIRMED.
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