USA v. Rudy Estrada

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12178
Non-Argument Calendar
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D.C. Docket No. 2:08-cr-00110-JES-CM-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
RUDY ESTRADA,
Defendant–Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 24, 2016)
Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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This is Defendant Rudy Estrada’s second appeal of his sentence following
his guilty plea to illegal re-entry after being deported subsequent to an aggravated
felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). In his first appeal,
we vacated Defendant’s 48-month sentence and remanded for resentencing
because the district court erred by applying a 16-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii).1 United States v. Estrada, 777 F.3d 1318, 1322–23
(11th Cir. 2015). On remand, the district court imposed a 41-month sentence.
Defendant now appeals that sentence and argues for the first time that the district
court procedurally erred and violated his due process rights by relying on a clearly
erroneous fact—that he had been deported several times and returned to the United
States. After careful review, we affirm.
I. BACKGROUND
In 2004, Defendant, a citizen of Mexico, was convicted in Florida state court
of throwing a deadly missile, in violation of Fla. Stat. § 790.19. Defendant was
removed to Mexico, and later illegally reentered the United States. Defendant’s
illegal re-entry was discovered when he was arrested in Florida on state drug
charges.
After Defendant pleaded guilty to the present illegal re-entry offense, the
1 Section 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines provides for a 16-level
enhancement if the defendant was deported subsequent to a felony conviction for a crime of
violence and the conviction receives criminal history points. U.S.S.G. § 2L1.2(b)(1)(A)(ii).
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district court imposed a 48-month sentence. On appeal, we concluded that the
district court erred by applying a 16-level enhancement pursuant to
§ 2L1.2(b)(1)(A)(ii) because Defendant’s prior conviction for throwing a deadly
missile was not a crime of violence. Estrada, 777 F.3d at 1322. However, we
determined that Defendant’s prior conviction would support an eight-level
enhancement under § 2D1.2(b)(1)(C) because it met the definition of an
aggravated felony. Id. at 1322–23. Consequently, we vacated Defendant’s
sentence and remanded for the limited purpose of having the district court
resentence Defendant based on the guideline range applicable with the eight-level
enhancement. Id.
In anticipation of resentencing, the probation officer completed a revised
Presentence Investigation Report (“PSR”). With the inclusion of the 8-level
enhancement under § 2L1.2(b)(1)(C), Defendant’s total offense level was 13. The
PSR assigned Defendant a criminal history category of VI based on 17 criminal
history points. Of note, in 2010 and 2011, Defendant was convicted of various
cocaine trafficking offenses in Florida state court and received a total sentence of
15 years’ imprisonment. Based on a total offense level of 13 and a criminal history
category of VI, Defendant’s guideline range was 33 to 41 months’ imprisonment.
At the resentencing hearing, after ensuring that there were no objections to
the PSR, the district court calculated a guideline range of 33 to 41 months’
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imprisonment. Before imposing sentence, the district court stated that it had
considered the 18 U.S.C. § 3553(a) factors and noted that Defendant’s new
guideline range was significantly lower than his original guideline range. The
district court then stated:
That’s the good news for you. The bad news, I guess, is that I
thought, when the guidelines were much higher, I considered them,
but didn’t follow them, and imposed a sentence significantly below
the guidelines at that time. Not much has changed, really. Your
criminal history is what it is, and what it’s always been, and you’ve
been deported several times, you’ve come back, and you continue to
make criminal activities. The 15-year sentence you’re serving is
based upon some of those state criminal activities.
With regard to your good behavior at sentencing—or in
custody, rather, you seem to recognize . . . that you are doing
apparently much better now, in custody, than you did when you were
not in custody. The Court considers, at some level, the progress
you’ve made. I recognize you will receive a benefit, because of that,
in terms of good time, things like that.
The district court rejected Defendant’s request for a downward variance,
concluding that it was not appropriate under the § 3553(a) factors. Consequently,
the district court sentenced Defendant to 41 months’ imprisonment to run
consecutive to his 15-year Florida state sentence.
II. DISCUSSION
Using a two-step process, we review the reasonableness of a district court’s
sentence for an abuse of discretion. United States v. Cubero, 754 F.3d 888, 892
(11th Cir. 2014). We first look to whether the district court committed any
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significant procedural error, such as miscalculating the advisory guideline range,
treating the Sentencing Guidelines as mandatory, failing to consider the 18 U.S.C.
§ 3553(a) factors,2 selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence. Id. Then we examine whether the
sentence is substantively reasonable in light of the totality of the circumstances.
Id. The party challenging the sentence bears the burden of showing that it is
unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008).
We review factual findings for clear error. United States v. Williams, 340
F.3d 1231, 1234–35 (11th Cir. 2003). However, when a defendant raises a
sentencing argument on appeal that was not raised before the district court,
including a challenge to the procedural reasonableness of his sentence, we review
for plain error. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.
2014). Under plain error review we will reverse where there is “(1) an error
(2) that is plain and (3) that has affected the defendant’s substantial rights, and . . .
(4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).
2 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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On appeal, Defendant only challenges the procedural reasonableness of his
sentence. In particular, he argues that the district court violated his due process
rights by relying on a clearly erroneous fact, namely that Defendant had been
deported multiple times and reentered the United States. As Defendant properly
concedes, he did not raise this argument before the district court. Accordingly, our
review of his argument is limited to plain error. See Vandergrift, 754 F.3d at 1307.
We conclude that Defendant has not met his burden of showing that the
district court plainly erred in imposing his 41-month sentence by relying on the
fact that he had been deported multiple times and returned to the United States.
With that said, the record indicates that the district court mistakenly stated that
Defendant had been deported several times. Indeed, the Government agrees that
the district court’s statement was incorrect. Further, the Government does not
contest that Defendant was only deported one time on March 31, 2005. However,
Defendant’s revised PSR used two different dates to refer to Defendant’s
deportation: March 31, 2005 and May 31, 2005. While the PSR’s statement
regarding the May 31, 2005 deportation date appears to be erroneous, Defendant
did not object, and thus he arguably admitted this fact for sentencing purposes. See
United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (stating that the
failure to object to factual statements in the PSR admits them for sentencing
purposes). Because the two deportations dates listed in the PSR could have led the
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district court to conclude that Defendant had been deported more than once, we
cannot say that the district court committed error, or that the error was plain. See
id.; cf. United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (indicating
that a factual finding is clearly erroneous when, after reviewing the evidence, we
are “left with the definite and firm conviction that a mistake has been committed.”
(quotation omitted)).
In any event, even if we concluded that the district court committed error
and that the error was plain, Defendant has not shown that this error affected his
substantial rights. The district court’s imposition of Defendant’s sentence was not
based solely on its mistaken belief that he had been deported multiple times. In
fashioning Defendant’s sentence, the district court considered the other § 3553(a)
factors, as well as Defendant’s mitigating evidence related to his rehabilitative
efforts in prison. The district court also referenced Defendant’s lengthy criminal
history and the lack of deterrent effect Defendant’s prior punishment had on his
continued criminal activities. In particular, the district court explicitly stated that
Defendant committed the Florida state drug offenses for which he received a 15-
year sentence after he had been deported and returned to the United States.
Because the record does not show that Defendant’s sentence was entirely
based on the statement that he had been deported several times, he has failed to
show a reasonable probability that his within-guidelines sentence would have been
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different but for the district court’s statement regarding the number of deportations.
See United States v. Bane, 720 F.3d 818, 830 (11th Cir. 2013) (“‘A substantial
right is affected if the appealing party can show that there is a reasonable
probability that there would have been a different result had there been no error.’”).
Thus, Defendant has not met the third prong of the plain error test because he has
not demonstrated that the error affected his substantial rights. See Jones v. United
States, 527 U.S. 373, 394–95 (1999) (“Where the effect of the [alleged error] is so
uncertain, a defendant cannot meet his burden of showing that the error actually
affected his substantial rights.”).
We are similarly not persuaded that the district court’s purported error
violated Defendant’s due process rights. Again, Defendant did not raise this
argument before the district court, so we review for plain error. See Vandergrift,
754 F.3d at 1307; see also United States v. Candelario, 240 F.3d 1300, 1305–06
(11th Cir. 2001) (stating that a constitutional objection that is not raised before the
district court is reviewed for plain error on appeal). A defendant has a due process
right not to be sentenced based on false or unreliable information. United States v.
Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). To establish a due process
violation, a defendant must show that: (1) the information is false and unreliable;
and (2) that the information actually served as a basis for the defendant’s sentence.
See United States v. Reme, 738 F.2d 1156, 1167–68 (11th Cir. 1984) (concluding
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that a due process violation occurred where unreliable hearsay evidence was the
“salient” factor in determining Defendant’s sentence). As we have shown, even if
Defendant could establish error that was plain, his due process argument fails
because he cannot establish that the error affected his substantial rights. See Bane,
720 F.3d at 830; Jones, 527 U.S. at 394–95.
For all of these reasons, Defendant’s sentence is AFFIRMED.
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