USA v. Luis Naranjo

Filing

Opinion issued by court as to Appellant Luis Alberto Naranjo. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 10/21/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15115
Non-Argument Calendar
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D.C. Docket No. 0:15-cr-60043-JIC-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALBERTO NARANJO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 21, 2016)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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After pleading guilty to illegal reentry after deportation, in violation of 8
U.S.C. § 1326(a) and (b)(2), Luis Alberto Naranjo appeals his 60-month sentence,
imposed below the advisory guidelines range of 77 to 96 months. On appeal,
Naranjo argues that his 60-month sentence is substantively unreasonable because it
was ordered to run consecutive to an undischarged Florida state sentence. After
review, we affirm.
I. FACTUAL BACKGROUND
A.

Naranjo’s Removal, Illegal Reentry, and State Sentence
Naranjo, a native and citizen of Venezuela, was brought to the United States

as a child and grew up in Florida. At 18, Naranjo began what would become a
long criminal history that included state convictions for, inter alia, trespassing,
grand theft, fleeing and eluding police officers, cannabis possession, burglary of an
occupied structure, battery on a law enforcement officer, and resisting arrest with
violence, all before he was 27.
In 2001, at 27, Naranjo was arrested for fleeing and eluding police by
vehicle, marijuana possession, and driving on a suspended or revoked license. On
April 22, 2002, Naranjo was found guilty as charged. In addition, his probation
was revoked for several of his earlier convictions for grand theft, burglary, and
battery on a law enforcement officer. Naranjo was sentenced in each case to
concurrent 40-month prison terms.
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While Naranjo was incarcerated, immigration officials filed a detainer and
began removal proceedings. On July 8, 2004, Naranjo was removed to Venezuela.
At some point, Naranjo returned to the United States. On January 8, 2009,
Naranjo was again arrested in Florida. This time, Naranjo was charged in state
court under the name John Caldwell and pled no contest to resisting an officer with
violence, unlawful use of a false name or identity, and operating without a valid
license. The state court sentenced Naranjo to 5 years’ imprisonment and ordered
him to surrender by May 28, 2009, at which time his sentence would be reduced to
29.8 months. When Naranjo absconded, the state court issued a warrant for his
arrest.
On April 29, 2011, law enforcement in Broward County, Florida received a
tip that Naranjo was residing in that county and began an investigation. On May
23, 2011, Naranjo was traced to a hotel, where he was arrested on June 15, 2011.
After Naranjo was fingerprinted, law enforcement learned his true identity and that
he had previously been deported in 2004. On July 6, 2011, Naranjo began serving
his 5-year sentence on his April 29, 2009 state convictions.
B.

Naranjo’s Federal Sentencing
In March 2015, Naranjo was indicted in federal court on the instant illegal

reentry offense, to which he pled guilty. At the October 2015 sentencing hearing,
the district court overruled Naranjo’s objections to the presentence investigation
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report (“PSI”), and Naranjo does not challenge those rulings on appeal. The
district court calculated a total offense level of 21, which included a 16-level
increase, under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because Naranjo was removed after
a 2000 conviction for resisting an officer with violence. With a criminal history
category of VI, Naranjo’s advisory guidelines range was 77 to 96 months.
Naranjo requested a 77-month sentence, but asked the district court “to
deduct” the 52 months Naranjo had already served in state prison for his 2009 state
convictions, such that Naranjo would serve only 25 months in federal prison. After
stating that it had considered the parties’ statements, the PSI, and the 18 U.S.C.
§ 3553(a) factors, the district court imposed a 60-month sentence, a downward
variance of 17 months. The district court ordered the sentence to run consecutively
to Naranjo’s undischarged Florida state sentence on his 2009 convictions.
II. DISCUSSION
We review the reasonableness of a sentence using a “deferential abuse-ofdiscretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591,
(2007). In reviewing sentences for reasonableness, we determine, first, whether
the district court committed any significant procedural error, and then whether the
sentence was “substantively reasonable under the totality of the circumstances.”
United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010).1 The defendant bears

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Naranjo does not raise any procedural error with respect to his sentence.
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the burden to show his sentence is unreasonable in light of the record and the 18
U.S.C. § 3553(a) factors. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
2008). 2 The abuse of discretion standard “allows a range of choice for the district
court, so long as that choice does not constitute a clear error of judgment.” United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks
omitted).
“[A] federal court is authorized to impose a federal sentence consecutive to a
state sentence.” United States v. Ballard, 6 F.3d 1502, 1506 (11th Cir. 1993). Our
review as to “the appropriateness of a consecutive sentence” is for an abuse of
discretion. United States v. Andrews, 330 F.3d 1305, 1307 (11th Cir. 2003); see
also United States v. Covington, 565 F.3d 1336, 1346 (11th Cir. 2009).
Under 18 U.S.C. § 3584, “if a term of imprisonment is imposed on a
defendant who is already subject to an undischarged term of imprisonment,” the
district court has the discretion to run the prison term “concurrently or
consecutively.” 18 U.S.C. § 3584(a). Further, “[m]ultiple terms of imprisonment
imposed at different times run consecutively unless the court orders that the terms

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
educational 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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are to run concurrently.” Id. In deciding whether to impose a concurrent or
consecutive term, § 3584 requires the district court to “consider, as to each offense
for which a term of imprisonment is being imposed,” the § 3553(a) factors. Id.
§ 3584(b).
Likewise, the Sentencing Guidelines authorize consecutive sentences.
Under U.S.S.G. § 5G1.3, if the instant offense is committed while the defendant is
serving, or has been sentenced to, a term of imprisonment, the Guidelines call for a
consecutive sentence. See U.S.S.G. § 5G1.3(a). Otherwise, “the sentence for the
instant offense may be imposed to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(d). Both 18
U.S.C. § 3584 and U.S.S.G. § 5G1.3 “evince a preference for consecutive
sentences when imprisonment terms are imposed at different times.” Ballard, 6
F.3d at 1506.
Here, Naranjo has not shown that his 60-month sentence, ordered to run
consecutive to his undischarged 5-year state sentence, was unreasonable. The
record reflects that the district court considered the § 3553(a) factors and Naranjo’s
arguments in mitigation before ordering that Naranjo’s federal sentence be served
consecutive to his undischarged state sentence. See United States v. Scott, 426
F.3d 1324, 1329 (11th Cir. 2005) (explaining that the district court is not required
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to explicitly consider each sentencing factor). Given the general preference for
consecutive sentences in different criminal cases and Naranjo’s extensive criminal
history, we cannot say the district court’s decision to impose a sentence
consecutive to Naranjo’s state sentence was an abuse of discretion.
Naranjo argues that the district court’s decision gave too much weight to his
2009 resisting with violence conviction, but this Court does not reweigh the
§ 3553(a) factors absent clear error. See United States v. Langston, 590 F.3d 1226,
1237 (11th Cir. 2009). Further, there is no merit to Naranjo’s claim that his 2009
resisting with violence conviction was “the engine driving” the 16-level increase in
his offense level under § 2L1.2. Naranjo’s 16-level guidelines enhancement was
based on his 2000, pre-removal conviction for resisting with violence, not his
2009, post-removal conviction.
There is also no merit to Naranjo’s argument that running his federal
sentence consecutive to his state sentence doubles his time in prison for his 2009
resisting with violence conviction. Naranjo’s federal 60-month sentence is for the
separate offense of illegal reentry and addresses different societal harms than
Naranjo’s 60-month state sentence for resisting an officer with violence.
In sum, under the factual circumstances of this case, Naranjo has not shown
the district court abused its discretion by running Naranjo’s 60-month federal
sentence consecutive to his 5-year state sentence.
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AFFIRMED.

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