USA v. Felix Mena-Valenzuela

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 06, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13879
Non-Argument Calendar
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D. C. Docket No. 09-00003-CR-WCO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIX MENA-VALENZUELA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 6, 2010)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:

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Felix Mena-Valenzuela appeals his 52-month sentence and $2,000 fine
imposed pursuant to his conviction for illegal reentry after deportation for a felony
conviction, in violation of 8 U.S.C. § 1326(a), (b)(2). Mena-Valenzuela raises two
issues on appeal. First, he asserts his sentence is unreasonable because the district
court did not properly consider the statutory factors in fashioning a prison sentence
that was “sufficient, but not greater than necessary” to fulfill the goals of 18 U.S.C.
§ 3553(a). Second, he contends the district court erred in imposing a $2,000 fine
despite his inability to pay it. After review, we affirm the district court.
I. REASONABLENESS OF THE TERM OF IMPRISONMENT
Mena-Valenzuela claims the district court failed to properly consider his
personal characteristics and circumstances in imposing a sentence of 52 months’
imprisonment. He claims his impoverished background and his desire to support
his dependents living in Mexico entitled him to a downward variance in sentence.
Mena-Valenzuela further contends, for the first time on appeal, the district court
erred in failing to consider his criminal history was subject to double-counting
under the Sentencing Guidelines.
We review the reasonableness of a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 41, 128 S.Ct. 586, 592 (2007). The burden of
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establishing unreasonableness lies with the party challenging the sentence. United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
When reviewing a sentence for reasonableness, we evaluate whether the
sentence imposed by the district court fails to achieve the purposes of sentencing
under 18 U.S.C. § 3553(a). Id. Reasonableness review is deferential, and if a
district court imposes a sentence within the advisory Guidelines range, “we
ordinarily will expect that choice to be a reasonable one.” Id. “The sentencing
judge should set forth enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct.
2456, 2468 (2007). A sentencing judge is not required to expressly discuss each of
the § 3553(a) before imposing sentence. United States v. Ortiz-Delgado, 451 F.3d
752, 758 (11th Cir. 2006). Rather, “an acknowledgment by the district court that it
has considered the defendant’s arguments and [the statutory factors] is sufficient
under Booker.” Talley, 431 F.3d at 786.
Mena-Valenzuela’s mid-Guidelines-rage sentence is reasonable. Prior to
imposing the sentence, the court properly considered the arguments presented by
the parties, the advisory Sentencing Guidelines, and the findings in the PSI
informing the statutory factors. Additionally, Mena-Valenzuela’s double-counting
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argument is foreclosed by precedent, see United States v. Adeleke, 968 F.2d 1159,
1161 (11th Cir. 1992) (upholding double counting under § 2L1.2(b)(1)). Because
Mena-Valenzuela has not shown it incarceration period is unreasonable, we affirm
the imposed sentence.
II. REASONABLENESS OF THE FINE IMPOSED
Mena-Valenzuela claims the district court erred by imposing a fine of
$2,000 because he claims he is unable to pay the fine and a fine would burden his
dependents in Mexico. Mena-Valenzuela also contends the record is insufficient to
show the district court considered any of the relevant factors before imposing the
fine.
We review a district court’s determination of an appropriate fine for clear
error. United States v. Rowland, 906 F.2d 621, 623 (11th Cir. 1990). The
Sentencing Guidelines state a district court “shall impose a fine in all cases, except
where the defendant establishes that he is unable to pay and is not likely to become
able to pay any fine.” U.S.S.G. § 5E1.2(a) (emphasis added). Thus, the burden is
on the defendant to prove his inability to pay a fine. United States v. Hernandez,
160 F.3d 661, 665 (11th Cir. 1998). If a defendant establishes he is unable to pay a
fine or that the fine would burden his dependents, the court may waive the fine or
impose a lesser fine. U.S.S.G. § 5E1.2(e).
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When a district court decides that a fine is appropriate, it must consider the
factors in § 5E1.2(d) to determine the amount of the fine. Hernandez, 160 F.3d at
665. A district court is not required to make specific findings for each of these
factors. Id. at 665–66. However, “the record must contain sufficient information
with respect to the seven factors to permit us to find that the district court did not
clearly err in imposing or setting the amount of the fine.” United States v.
Khawaja, 118 F.3d 1454, 1459 (11th Cir. 1997). If the PSI presented information
with respect to the factors, and the district court reviewed the PSI prior to imposing
the fine, we will “infer without hesitation that the district court considered the
pertinent factors prior to imposing the fine.” Id.
Because the PSI contained information relevant to the § 5E1.2(d) factors,
we infer that the district court considered the factors before imposing the fine,
which was far below the Guidelines range of $7,500 to $75,000. Prior to imposing
the fine, the district court specifically noted Mena-Valenzuela’s agreement to pay
$2,000 to a coyote to illegally smuggle him into the country as well as his
admission that he had been able to send excess wages home to his family while
working in the United States. Because the record cited by the district court
indicated Mena-Valenzuela had the means to pay the fine at the amount set, and
because Mena-Valenzuela presented no evidence as to his inability to pay the
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below-Guidelines range fine, Mena-Valenzuela did not meet his burden of proof in
demonstrating the fine was unreasonable. The district court did not commit clear
error in imposing the fine, and we accordingly affirm the imposition of the fine.
AFFIRMED.
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