USA v. Rubio Sales

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12574
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBIO RUBEN SALES,
a.k.a. Rubio Mendez-Sales,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cr-80204-KAM-1
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2 Opinion of the Court 23-12574
____________________
Before WILSON, L UCK , and ANDERSON, Circuit Judges.
PER CURIAM:
Rubio Ruben Sales appeals his 70-month federal sentence for
illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a)
and (b)(1). Sales argues that the district court imposed a substan-
tively unreasonable sentence when it chose to consecutively run 60
months of his federal sentence after his separate state offense. After
careful review, we affirm.
I.
Sales is a native and citizen of Guatemala. In 2008, he was
convicted of aggravated battery by intentionally stabbing someone
in the chest and right arm. Then, in 2011, he was convicted of fel-
ony death by vehicle, and Sales was deported back to Guatemala
the following year. Sometime thereafter he returned to the United
States. In 2018, Sales was convicted of felony sexual battery against
a 15-year-old girl and sentenced in Florida state court to 35.5 years’
imprisonment. He was subsequently charged and pleaded guilty
in federal court to illegal reentry after deportation.
Sales’s Presentence Investigation Report (PSI) applied a base
offense level of eight under U.S.S.G. § 2L1.2(a). Two enhance-
ments were applied: (1) an eight-level enhancement for the felony
death by vehicle offense that occurred before his first removal, per
U.S.S.G. § 2L1.2(b)(2)(B); and (2) a ten-level enhancement for his
felony sexual battery offense that occurred after his first removal,
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23-12574 Opinion of the Court 3
per U.S.S.G. § 2L1.2(b)(3)(A). After a three-level reduction for
timely acceptance of responsibility per U.S.S.G. § 3E1.1(a) and (b),
his total offense level was 23. Based upon his three prior convic-
tions, the PSI calculated eight criminal history points and a criminal
history category of IV. The final Guidelines range was 70 to 87
months’ imprisonment, with a statutory maximum term of 10
years under 8 U.S.C. § 1326(b)(1).
At sentencing, Sales urged the court to run a greater portion
of his sentence concurrently to his undischarged state sentence for
felony sexual battery. The district court rejected Sales’s arguments
and agreed with the government’s recommendation that a signifi-
cant portion of the sentence run consecutively. The district court
emphasized Sales’s history of successively dangerous crimes and
the need to protect the public. As a result, the court sentenced him
to 70 months’ imprisonment for illegal reentry after deportation,
with 60 months to run consecutively, and 10 months concurrently,
to his undischarged state sentence for felony sexual battery. Sales
timely appealed.
II.
Sales argues that the district court imposed a substantively
unreasonable sentence1 when it chose to run 60 months of his
1 Sales did not object to the calculation of his Guidelines range in his PSI, and
the district court adopted its findings in full. Accordingly, we adopt the same
Guidelines range to analyze the substantive reasonableness of his sentence.
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4 Opinion of the Court 23-12574
federal illegal reentry sentence consecutively to his separate state
offense.
We review a sentence’s substantive reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United States, 552
U.S. 38, 41 (2007). We similarly review for abuse of discretion the
decision to run a federal sentence consecutively to a state-imposed
sentence. United States v. Covington, 565 F.3d 1336, 1346 (11th Cir.
2009). “The party challenging a sentence has the burden of show-
ing that the sentence is unreasonable in light of the entire record,
the § 3553(a) factors, and the substantial deference afforded sen-
tencing courts.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256
(11th Cir. 2015).
Under § 3553(a), a sentencing court must impose a sentence
that is “sufficient, but not greater than necessary” to reflect the se-
riousness of the offense, promote respect for the law, provide just
punishment, afford adequate deterrence, and protect the public
from further crimes of the defendant. 18 U.S.C. § 3553(a)(2). The
court also must consider, among other factors, the nature and cir-
cumstances of the offense, the history and characteristics of the de-
fendant, the applicable Guidelines range, and any pertinent policy
statement issued by the Sentencing Commission. See id.
§ 3553(a)(1), (3)–(5).
The weight given to each § 3553(a) factor “is committed to
the sound discretion of the district court,” wherein “a district court
may attach great weight to one § 3553(a) factor over others.”
United States v. Butler, 39 F.4th 1349, 1355 (11th Cir. 2022). We
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23-12574 Opinion of the Court 5
ordinarily expect a sentence within the Guidelines range to be rea-
sonable, and “[a] sentence imposed well below the statutory maxi-
mum penalty is an indicator of a reasonable sentence.” United
States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014).
When a federal sentence is imposed on a defendant subject
to an undischarged term of state imprisonment, “the terms may
run concurrently or consecutively.” 18 U.S.C. § 3584(a). The dis-
trict court must consider the same § 3553(a) factors in making such
determinations. Id. § 3584(b). We recognize that district judges
“have long been understood to have discretion to select whether
the sentences they impose will run concurrently or consecutively
with respect to other sentences . . . that have been imposed in other
proceedings, including state proceedings.” Setser v. United States,
566 U.S. 231, 236 (2012). Once the § 3553(a) factors are considered,
“the only limitation on running sentences consecutively is that the
resulting total sentence must be reasonable.” Covington, 565 F.3d
at 1347.
On appeal, Sales argues that the district court improperly
weighed the § 3553(a) factors. He points to the court’s emphasis
upon Sales’s criminal history and the need to protect the public.
Due to his 35.5-year state imprisonment, Sales argues that the pur-
poses of § 3553(a) are already met and his federal sentence should
run concurrently.
Based upon this record, the district court’s sentence is sub-
stantively reasonable. In arriving at the sentence, the court stated
that it considered all of the § 3553(a) factors, with an emphasis
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upon Sales’s history and characteristics and the need to protect the
public from further crimes. Not only was this weight within the
district court’s sound discretion, Butler, 39 F.4th at 1355, but it was
warranted by the record. Sales’s history includes several violent
crimes both before and after his deportation, including stabbing an
individual in the chest, committing felony death by vehicle, and
sexually assaulting a 15-year-old girl. Further, 70 months’ impris-
onment falls at the bottom of the applicable Guidelines range and
well below the statutory maximum sentence, both of which serve
as indicators of a reasonable sentence. Stanley, 739 F.3d at 656.
Based upon this significant history of violence against and disregard
for others, the district court acted well within its discretion to order
his illegal reentry sentence run 10 months concurrently, and 60
months consecutively, to his present state sentence. Accordingly,
we affirm.
AFFIRMED.
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