USA v. David Riveron-Valdes

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12689
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID RICARDO RIVERON-VALDES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:23-cr-80042-RLR-1
____________________
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2 Opinion of the Court 23-12689
Before G RANT, BRASHER , and ABUDU, Circuit Judges.
PER CURIAM:
David Riveron-Valdes appeals his sentence for encouraging
and inducing an alien to illegally enter and reside in the United
States. Because the district court correctly applied the
enhancement for a firearm having been discharged during the
offense, and because Riveron-Valdes’s sentence is substantively
reasonable, we affirm.
I.
Late one night in February 2023, United States Customs and
Border Protection Air and Marine Operations spotted a suspected
smuggling vessel traveling toward the United States from the
Bahamas. After surveilling the vessel throughout the night, AMO
attempted to interdict the smuggling vessel within the territorial
waters of the United States off the coast of Florida. AMO engaged
its vessel’s blue enforcement lights, sirens, spotlights, and
flashlights to initiate an investigatory stop, but the smuggling
vessel kept heading toward the United States. With the captain of
the smuggling vessel not cooperating, the AMO deployed two
warning flares, prompting the rogue vessel to finally slow to a stop.
Sure enough, the vessel was found to be captained by
Riveron-Valdes, a Cuban national, and there were eleven other
non-citizens on board. Several of the vessel’s passengers were
young children, including a two-year old, a four-year-old, and two
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23-12689 Opinion of the Court 3
nine-month-old children. There was no food or water onboard the
vessel. Nor were there any life jackets.
Riveron-Valdes was charged with eleven counts of
knowingly encouraging and inducing aliens to illegally enter and
reside in the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(B)(iii) (Counts 1–11), and one count of failing to obey
an order to heave to a vessel, in violation of 18 U.S.C. § 2237(a)(1)
(Count 12). He pleaded guilty to Count 1, and the remaining
counts were dismissed.
At sentencing, Riveron-Valdes’s base offense level was
subject to several enhancements. Relevant to this appeal, his
offense level was increased by seven levels pursuant to U.S.
Sentencing Guidelines § 2L1.1(b)(5)(A) because a firearm was
discharged during the offense—namely, the warning shots fired by
the AMO. The Guidelines imprisonment range was 46–57 months
imprisonment, but the district court decided that a downward
variance was appropriate and ultimately sentenced Riveron-Valdes
to 37 months imprisonment with two years of supervised release.
II.
Riveron-Valdes objects to the application of the seven-level
enhancement under U.S.S.G. § 2L1.1(b)(5) because he did not
personally possess or discharge a firearm during the offense. This
Court reviews a district court’s factual findings for clear error, and
the application of those facts to the Guidelines de novo. United
States v. McQueen, 670 F.3d 1168, 1169 (11th Cir. 2012).
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4 Opinion of the Court 23-12689
Riveron-Valdes’s argument is foreclosed by binding
precedent. In United States v. McQueen, we heard an appeal from an
almost identical set of facts. There, a smuggler heading to Florida
led Customs and Border Protection on a boat chase, prompting the
officers to fire two illuminated warning shots. Id. We affirmed the
application of the sentencing enhancement because McQueen’s
actions “induced” the discharge of the firearm; “a ‘reasonable’ alien
smuggler who flees from law enforcement on the high seas would
foresee the use of illuminated warning shots to gain compliance.”
Id. at 1171. So too here. Because the discharge of a firearm by law
enforcement was a reasonably foreseeable result of Riveron-
Valdes’s nautical evasion, the enhancement was properly applied.
He also argues that his sentence is substantively
unreasonable. Specifically, he argues that the district court did not
consider the relevant factors, especially his lack of criminal history.
We review the substantive reasonableness of a sentence for abuse
of discretion. United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir.
2010) (en banc). We will vacate a sentence only if “we are left with
the definite and firm conviction that the district court committed a
clear error of judgment.” Id. at 1190 (quotation omitted). The
party challenging the sentence bears the burden of showing that
the sentence is unreasonable. Id. at 1191 n.16.
Riveron-Valdes did not meet this burden. The district court
considered the § 3553(a) factors. It acknowledged that Riveron-
Valdes had no criminal history, and that the various enhancements
raised his base offense level to the “higher side.” But it also
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23-12689 Opinion of the Court 5
considered the seriousness of the crime, the need for general
deterrence, and the fact that Riveron-Valdes created the risk of a
“catastrophic outcome” had something gone wrong with his vessel
during the clandestine voyage. Taking all of that into account, the
court chose to vary downward to a sentence of 37 months,
followed by two years of supervised release. We cannot say that
this was a clear error of judgment, nor is there any evidence that
the district court weighed an improper factor. Irey, 612 F.3d at
1189.
* * *
Because the application of the sentence enhancement to
Riveron-Valdes’s case is controlled by binding precedent, and
because the ensuing sentence was substantively reasonable, the
sentence imposed by the district court is AFFIRMED.
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