USA vs. Ismael Montiel-Hernandez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 19, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-10340
Non-Argument Calendar
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D.C. Docket No. 8:09-cr-00388-SDM-MAP-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
ISMAEL MONTIEL-HERNANDEZ,
a.k.a. Rudy Hernandez-Solis,
a.k.a. Raul Hernandez-Lopez,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 19, 2010)
Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Montiel-Hernandez appeals his sentence to two counts of

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transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (B)(i), and
one count of illegal reentry after being deported, in violation of 8 U.S.C. §
1326(a).
On appeal, Montiel-Hernandez asserts that district courts in the Eleventh
Circuit generally, and the Middle District of Florida specifically, impose above-
guidelines sentences in immigration cases more frequently than district courts in
other circuits that adjudicate more immigration cases. Based on his comparisons,
he asserts that an immigration offender is “substantially more likely to receive an
upward variance if he is apprehended in the Tampa Division of the Middle District
of Florida than if he is found” in any other compared district. Montiel-Hernandez
concludes his statistical analysis by submitting that the high percentage of above-
guidelines sentences imposed by the Middle District of Florida renders the court’s
upward variance in his case an abuse of discretion.
We review the reasonableness of a district court’s sentence under a
deferential abuse of discretion standard of review. Gall v. United States, 552 U.S.
38, 41, 128 S. Ct. 586, 591, 169 L. Ed. 2d 445 (2007).
When considering the difference between a particular sentence and
sentences imposed for similar crimes, we are not persuaded by bare numbers
without context. United States v. Campbell, 491 F.3d 1306, 1317 (11th Cir.
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2007). In Campbell, we considered a challenge by the former mayor of Atlanta to
his sentences for tax fraud. Id. at 1308-09. Rejecting Campbell’s argument that
“statistics . . . indicate that Campbell’s sentences greatly exceed the average
sentences imposed upon those convicted of tax crimes,” we explained that “the
statistics Campbell cites are bare numbers without context and, therefore, do not
persuade us that his sentences are unreasonable.” Id. at 1317.
As in Campbell, Montiel-Hernandez has submitted bare numbers without
context, and thus has not shown that any statistical disparity between the district
courts of the Eleventh Circuit and any other circuit is unwarranted. Accordingly,
we refuse to rely on the bare statistics cited by Montiel-Hernandez, and conclude
that the statistics do not show that his sentence was unreasonable.
Montiel-Hernandez next argues that his sentence was procedurally and
substantively unreasonable. He maintains that his sentence was procedurally
unreasonable because the guidelines range for transporting 25-99 illegal aliens
reflected his previous transportation of illegal aliens, thus requiring the district
court to explain why his already accounted-for recidivism warranted an upward
variance. Substantively, Montiel-Hernandez argues that his 36-month sentence is
unreasonable because the district court placed too much weight on the nature and
circumstances of his offense by focusing almost exclusively on his transporting
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illegal aliens on three occasions instead of focusing on his mitigating
circumstances. Montiel-Hernandez also reiterates his claim that the guidelines
range adequately reflected his recidivism, and contends that the district court’s
sentence was arbitrary in light of the Middle District of Florida’s statistical
disparities in sentencing.
When reviewing the reasonableness of a sentence, we will first ensure “that
the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.”
Gall, 552 U.S. at 51, 128 S. Ct. at 597. The district court’s justification for a
variance from the guidelines range “must be compelling enough to support the
degree of the variance and complete enough to allow meaningful appellate
review.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009), cert.
denied, 129 S. Ct. 2847 (2009) (internal quotation marks omitted). The Supreme
Court has rejected the idea that a sentence outside of the guidelines range must
have an extraordinary justification. See id. (citing Gall, 552 U.S. at 47, 128 S. Ct.
at 595).
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After reviewing the sentence for procedural reasonableness, we must
consider whether the sentence imposed is substantively reasonable in light of the
totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128
S. Ct. at 597. These factors include, among other things: (1) the nature and
circumstances of the offense; (2) the history and characteristics of the defendant;
(3) the need for a sentence to reflect the seriousness of the offense, promote
respect for the law, and provide just punishment for the offense; (4) the need to
deter criminal conduct; (5) the need to protect the public from further crimes
committed by the defendant; and (6) the advisory guideline range. See 18 U.S.C.
§ 3553(a). Another relevant factor is the relationship between the defendant’s
sentence and the applicable statutory maximum. See United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008) (noting, as one indication of reasonableness,
that a defendant’s sentence was “well below” the applicable statutory maximum),
cert. denied, 129 S. Ct. 2848 (2009).
We have “recognize[d] that there is a range of reasonable sentences from
which the district court may choose.” United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). “We will defer to the district court’s judgment regarding the
weight given to the § 3553(a) factors unless the district court has made a clear
error of judgment.” Gonzalez, 550 F.3d at 1324. For instance, “a district court’s
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unjustified reliance upon any one § 3553(a) factor [may be] a symptom of an
unreasonable sentence.” United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.
2006) (internal quotation marks omitted).
In determining a reasonable sentence, the district court may consider facts
that have already been taken into account in calculating the defendant’s guideline
range. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence”); United States v. Williams, 526
F.3d 1312, 1323-24 (11th Cir. 2008) (concluding that a district court could
consider defendant’s prior offenses in deciding to impose an upward variance,
even though those offenses were already included in the defendant’s criminal
history score). We have previously affirmed upward variances that were based in
part on the defendant’s prior criminal history. See Shaw, 560 F.3d at 1238-41
(affirming 83-month upward variance in a case where the defendant had 26 prior
arrests).
In this case, we conclude from the record that the district court’s sentence
was procedurally reasonable. The court correctly calculated Montiel-Hernandez’s
guidelines range, treated the guidelines as advisory, based the sentence on
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undisputed facts, addressed the § 3553(a) factors, and explained the reasons why it
was imposing an upward variance. The district court’s reasons for its variance
were also thoroughly explained and were “compelling enough to support the
degree of the variance and complete enough to allow meaningful appellate
review.” Shaw, 560 F.3d at 1238 (internal quotation marks omitted).
We also conclude from the record that Montiel-Hernandez’s sentence was
also substantively reasonable in light of the circumstances and § 3553(a) factors.
The district court exercised sound discretion and did not commit a clear error of
judgment when it imposed a sentence reflecting Montiel-Hernandez’s recidivism
and the need for deterrence. Gonzalez, 550 F.3d at 1324.
Finally, we conclude that any statistical sentencing disparities between the
Middle District of Florida and other district courts does not prove that Montiel-
Hernandez’s sentence was unreasonable for the same reasons as discussed above.
Therefore, we conclude that Montiel-Hernandez’s sentence was
procedurally and substantively reasonable, and we affirm his 36-month total
sentence.
AFFIRMED.
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