USA v. Jorge Chica-Giler

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13973
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE CHICA-GILER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:21-cr-14035-JEM-1
____________________
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2 Opinion of the Court 22-13973
Before J ILL PRYOR , BRANCH, and DUBINA , Circuit Judges.
PER CURIAM:
Appellant Jorge Chica-Giler appeals his total sentence of 262
months’ imprisonment following his guilty plea for conspiracy to
deal in firearms without a license, to smuggle firearms from the
United States, and to fail to notify a common carrier of shipped fire-
arms, and dealing in firearms without a license; smuggling firearms
from the United States; delivery of a firearm to a common carrier
without written notification; and possession of a firearm by an un-
lawful alien. On appeal, Chica-Giler argues that the district court
erred in denying him an acceptance-of-responsibility reduction un-
der U.S.S.G. § 3E1.1(a) because he pled guilty prior to trial, and he
claims that the district court imposed a procedurally and substan-
tively unreasonable sentence by failing to consider his mitigation
evidence and imposing a sentence significantly higher than the sen-
tences of his co-conspirators. Chica-Giler also contends that the
court should remand his case with instructions that the district
court correct the mathematical discrepancy between the district
court’s intended total sentence and its count-by-count breakdown
of his sentence. Having read the parties’ briefs and reviewed the
record, we affirm in part, and vacate and remand in part.
I.
We review for clear error “a district court’s determination
that a defendant has not accepted responsibility.” United States v.
Bates, 960 F.3d 1278, 1293 (11th Cir. 2020). To be clearly erroneous,
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22-13973 Opinion of the Court 3
the district court’s finding must leave us with a “definite and firm
conviction that a mistake has been committed.” United States v.
Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (quotation marks
omitted). The district court’s finding that a defendant has not ac-
cepted responsibility is owed “great deference on review” and it
“should not be disturbed unless it is without foundation.” Bates,
960 F.3d at 1293-94 (quotation marks omitted).
The United States Sentencing Guidelines provide for a two-
level reduction “[i]f the defendant clearly demonstrates acceptance
of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Appropriate
considerations for an adjustment under § 3E1.1 include, among
other things, whether the defendant: (1) truthfully admitted the
conduct comprising the offense of conviction, and truthfully admit-
ted or did not falsely deny any additional relevant conduct; (2) vol-
untarily surrendered to authorities promptly after the commission
of the offense; (3) voluntarily terminated or withdrew from crimi-
nal conduct or criminal associations; (4) voluntarily provided assis-
tance to the authorities in recovering the fruits and instrumentali-
ties of the offense; and (5) timely manifested the acceptance of re-
sponsibility. Id. § 3E1.1, comment. (n.1). The acceptance-of-re-
sponsibility reduction is “not intended to apply to a defendant who
puts the government to its burden of proof at trial.” Id., comment.
(n.2). See also United States v. Gilbert, 138 F.3d 1371, 1373 (11th Cir.
1998), abrogated on other grounds as recognized by United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (stating that in the con-
text of an acceptance-of-responsibility reduction, “pleas on the eve
of trial are not timely” because pleas at that time do not help the
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4 Opinion of the Court 22-13973
government avoid trial preparation or the district court manage its
docket).
“The defendant has the burden of clearly demonstrating ac-
ceptance of responsibility and must present more than just a guilty
plea.” United States v. Wade, 458 F.3d 1273, 1279 (11th Cir. 2006)
(internal quotation marks omitted). A party challenging a district
court’s determination as to acceptance of responsibility “has some-
thing of an uphill climb,” in part because the court’s “determina-
tion of whether a defendant has adequately manifested acceptance
of responsibility is a flexible, fact sensitive inquiry.” United States v.
Coats, 8 F.4th 1228, 1262 (11th Cir. 2021) (quotation marks omit-
ted). “As denoted by its plain language, the reduction is intended
to reward defendants who express contrition for their wrongdoing
and evidence a desire to reform their conduct.” United States v. Wil-
liams, 627 F.3d 839, 844 (11th Cir. 2010).
The record demonstrates that the district court did not
clearly err in denying Chica-Giler an acceptance-of-responsibility
reduction because it found that Chica-Giler did not timely manifest
a clear acceptance of responsibility when he pled guilty on the
morning that his trial was set to commence. And while Chica-Giler
contends that his allocution was consistent with acceptance of re-
sponsibility, the district court also did not clearly err in choosing an
equally permissible interpretation of the allocution as an attempt
to shift blame and an expression lacking contrition for his criminal
conduct. Thus, because Chica-Giler fails to meet his burden of
proof, we conclude that the district court did not commit clear
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22-13973 Opinion of the Court 5
error in denying Chica-Giler an acceptance-of-responsibility reduc-
tion under § 3E1.1(a), and we affirm as to this issue.
II.
We review the reasonableness of a sentence for abuse of dis-
cretion, which includes both substantive and procedural reasona-
bleness. United States v Green, 981 F.3d 945, 953 (11th Cir. 2020). A
defendant’s request of a particular sentence preserves his challenge
to the substantive reasonableness of any sentence longer than his
requested term. See Holguin-Hernandez v. United States, 589 U.S.
___, 140 S. Ct. 762, 766-67 (2020). However, where a defendant
does not object to the procedural reasonableness of his sentence at
the time of sentencing, we review for plain error only. United States
v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). Under plain-
error review, the defendant has the burden to show that there is (1)
error, (2) that is plain, and (3) that affects substantial rights. Id. If
all three requirements are met, we then consider whether the error
“seriously affect[s] the fairness, integrity, or public reputation of ju-
dicial proceedings.” Id. (quotation marks omitted, alteration in
original).
A sentence is procedurally reasonable when the district
court properly calculates a defendant’s guideline range, treats the
guidelines as advisory rather than mandatory, duly considers the
§ 3553(a) factors, and adequately explains its chosen sentence. Gall
v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). Section
3553(a) provides numerous factors the district court must consider
when imposing a sufficient sentence. 18 U.S.C. § 3553(a). While a
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6 Opinion of the Court 22-13973
district court must consider all the § 3553(a) factors in determining
a sentence, it is not required to state in its explanation that it has
evaluated each factor individually. United States v. Ortiz-Delgado,
451 F.3d 752, 758 (11th Cir. 2006). An acknowledgment by the dis-
trict court that it has considered the § 3553(a) factors is sufficient.
United States v. Taylor, 997 F.3d 1348, 1354-55 (11th Cir. 2021). Ad-
ditionally, district courts need not explicitly address all the mitigat-
ing evidence, so long as the record reflects that the court consid-
ered the sentencing factors and the parties’ arguments. Id.
A district court abuses its discretion and imposes a substan-
tively unreasonable sentence when it (1) fails to consider relevant
factors that were due significant weight, (2) gives a significant
weight to an improper or irrelevant factor, or (3) commits a clear
error of judgment by balancing the proper factors unreasonably.
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
We ordinarily expect a sentence within the guideline range to be
reasonable. United States v. Foster, 878 F.3d 1297, 1309 (11th Cir.
2018).
We have emphasized that we must give due deference to
the district court to consider and weigh the proper sentencing fac-
tors. United States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018).
The district court also 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). We will not reverse a sentence solely because we
could reasonably conclude that a different sentence was more
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22-13973 Opinion of the Court 7
appropriate. Gall, 552 U.S. at 51, 128 S. Ct. at 597. The district
court’s failure to mention specifically at sentencing certain mitigat-
ing factors does not compel the conclusion that “the sentence
crafted in accordance with the 18 U.S.C. § 3553(a) factors was sub-
stantively unreasonable.” United States v. Snipes, 611 F.3d 855, 873
(11th Cir. 2010). A sentence is substantively unreasonable if a dis-
trict court issued “a sentence that lies outside the range of reason-
able sentences dictated by the facts of the case.” Irey, 612 F.3d at
1190 (quotation marks omitted).
A defendant may challenge his sentence as substantively un-
reasonable due to an “unwarranted” sentencing disparity under §
3553(a)(6), but a disparity in sentencing may only be “unwar-
ranted” if other defendants receiving less severe sentences are sim-
ilarly situated to the defendant challenging his sentence. United
States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). “[D]efend-
ants who cooperate with the government and enter a written plea
agreement are not similarly situated to a defendant who provides
no assistance to the government and proceeds to trial.” Id. More-
over, “[t]he underlying facts of the crime and all of the individual
characteristics are relevant” to a court’s evaluation of alleged sen-
tencing disparities and its assessment of whether two defendants
are similarly situated. United States v. Azmat, 805 F.3d 1018, 1048
(11th Cir. 2015).
The record here demonstrates that the district court im-
posed a procedurally and substantively reasonable sentence. As ex-
plained above, the district court did not procedurally err in denying
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8 Opinion of the Court 22-13973
Chica-Giler an acceptance-of-responsibility reduction. The district
court adequately considered the § 3553(a) factors and sufficiently
explained its chosen sentence. Additionally, the record demon-
strates that the district court adequately considered Chica-Giler’s
mitigation evidence, and it stated that it had “considered the state-
ments of al the parties.” Moreover, the district court reasonably
concluded that the sentencing disparity between Chica-Giler and
his co-conspirators was not unwarranted because the record suffi-
ciently supports a finding that Chica-Giler was not similarly situ-
ated to his co-conspirators due to his leadership role in the conspir-
acy, the volume of firearms trafficked, and the fact that he was the
only defendant held responsible for removing the serial numbers
from the firearms. Thus, we conclude that the district court im-
posed a procedurally and substantively reasonable sentence, and
we affirm as to this issue.
III.
The correction of a clerical error under Federal Rule of
Criminal Procedure 36 is a legal issue that we review de novo. See
United States v. Davis, 841 F.3d 1253, 1261 (11th Cir. 2016) (review-
ing de novo a district court’s correction of clerical errors in the ver-
dict forms and the judgment under Rule 36). A district court may
“correct a clerical error in a judgment, order, or other part of the
record, or correct an error in the record arising from oversight or
omission.” Fed. R. Crim. P. 36. Where there is any discrepancy
between the written judgment and oral pronouncement, a district
court’s oral pronouncement of a sentence controls. United States v.
Khoury, 901 F.2d 975, 977 (11th Cir. 1990).
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The record indicates a clear discrepancy between the court’s
intent to sentence Chica-Giler to 262 months’ imprisonment and
its count-by-count breakdown of his sentence, which totals 252
months. Moreover, this error was repeated verbatim in the written
judgment, further suggesting that this error resulted from an over-
sight or omission in the district court. Correction of this error
would allow the count-by-count breakdown of the sentence to
align properly with the district court’s clearly intended total sen-
tence of 262 moths. Accordingly, for the aforementioned reasons,
we affirm in part, and vacate and remand in part, with instructions
to the district court to correct its clerical error in its judgment and
remove the ambiguity in Chica-Giler’s sentence.
AFFIRMED IN PART, VACATED AND REMANDED IN
PART.
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