USA v. Jose Vega-Cervantes

Filing

Opinion issued by court as to Appellant Jose Vega-Cervantes. 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: 12/20/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10714
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00234-WSD-JFK-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE VEGA-CERVANTES,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 20, 2016)
Before MARTIN, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:

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Jose Vega-Cervantes challenges, as substantively unreasonable, his aboveguidelines sentence of 92-months’ imprisonment for conspiracy to possess
methamphetamine with the intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A).

After reviewing the record and the parties’

arguments, we conclude that, at bottom, Mr. Cervantes simply disagrees with the
sentencing balance struck by the district court. We affirm his sentence.
We review the substantive reasonableness of a sentence for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 41 (2007). Mr. Cervantes, as
the party challenging the sentence, has the burden of demonstrating that the
sentence is unreasonable in light of the record and the factors enumerated in 18
U.S.C. § 3553(a). See United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.
2010).

“A district court abuses its discretion when it (1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (en banc) (quoting United States v. Campa, 459 F.3d
1121, 1174 (11th Cir. 2006) (en banc)). Under our deferential standard of review,
“we are to vacate the sentence if, but only if, we ‘are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of

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reasonable sentences dictated by the facts of the case.’” Id. at 1190 (quoting
United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).
Mr. Cervantes advances three main arguments. He argues that the district
court gave undue weight to his description of his crime as a “mistake,” which was
actually a word selected by the court interpreter, during his allocution. He also
claims that the upward variance was based on the mistaken belief that the
guidelines fail to account for deterrence and the quantity of methamphetamine
involved in the offense.

Lastly, Mr. Cervantes asserts that the district court

improperly imposed a sentence that ignored recent changes to the guidelines
allowing him a two-level decrease in his offense level based on his minor role.
None of these arguments are convincing, and a review of the record does not leave
us with the definite and firm conviction that Mr. Cervantes’ sentence was the
product of a clearly erroneous weighing of the § 3553(a) factors.
The district court began the sentencing hearing by resolving factual
objections to the pre-sentence investigation report and legal, guidelines-related
objections. After disposing of the guideline issues, the district court determined
that Mr. Cervantes’ advisory guidelines range was 63 to 78 months, and that his
statutory maximum penalty was life imprisonment. See 21 U.S.C. § 841(b)(1)(A).
The district court then afforded both sides the opportunity to present their
sentencing recommendations.

Defense counsel asked for 54 months and the

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government requested a sentence somewhere near the bottom end of the
guidelines.
Mr. Cervantes then spoke through a court interpreter. In two sentences, he
apologized for his “mistake” and expressed the desire to return to his country and
work for his family. The district court lambasted him for describing his crime as a
mistake. Chastising him for the apparent lack of remorse, the district court stated:
[Y]ou stand up today and say you made a mistake, that you’re sorry
and you just want to go home, no expression of any concern about the
impact that this would have had on people, no real[] acceptance that
you shouldn’t have done this, that you had the chance to say no but
didn’t, and wanted to hang around after [the delivery] . . . to make
sure that you got paid.
D.E. 131 at 39. It additionally noted that Mr. Cervantes’ lack of knowledge
regarding how much methamphetamine he was helping transport evidenced a
cavalier attitude towards the would-be victims.
In an explanation spanning several pages in the transcript, the district court
detailed the effects of methamphetamine and its deadly toll on society. Given the
gravity of the offense, the district court emphasized the importance of general
deterrence and explained that, in its view, the light sentence recommended by the
guidelines would not sufficiently promote respect for the law and deter others. See
D.E. 131 at 40. The district court stated it had considered all of the § 3553(a)
factors and concluded that an above-guidelines sentence was necessary to achieve
the purposes of sentencing. Finally, the district court added that, even setting aside
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the remorseless attitude Mr. Cervantes had displayed, the sentence was consistent
with, and proportionate to, sentences it had imposed in the past for similar conduct.
See D.E. 131 at 44. In the end, the district court varied upward from the top end of
the guidelines range by 14 months and imposed a sentence of 92 months’
imprisonment.
Mr. Cervantes claims that concluding that he was unrepentant from a single
word—a word he implies was incorrectly selected by the interpreter—in his
allocution was erroneous. But we cannot possibly fault the district court for
relying on the official translation, especially when Mr. Cervantes never sought to
correct any apparent error. In fact, he still has not told us what Spanish word he
used and what its proper contextual translation is.
More importantly, Mr. Cervantes attacks the district court’s finding in
isolation, ignoring the broader context in which it was made. The district court “is
in a superior position to find facts and judge their import under § 3553(a) in the
individual case” because it “sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains insights not conveyed by
the record.” Gall, 552 U.S. at 51. There is no question that there was more to the
district court’s finding than one word. The district court, for instance, questioned
Mr. Cervantes on his knowledge of the quantity of methamphetamine he was
helping transport. See D.E. 131 at 37–38. When he responded that he did not

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know at the time, the district court cited this lack of knowledge as an indication
that Mr. Cervantes lacked empathy towards the people the drugs harmed. In short,
the district court did not rely solely on the word “mistake” in finding that Mr.
Cervantes was unrepentant because, as the record shows, it engaged in a
meaningful colloquy with Mr. Cervantes, considered the entire record, and arrived
at its conclusion after observing him.
Mr. Cervantes also argues that his upward variance was premised on the
mistaken belief that the guidelines failed to account for deterrence and the quantity
of methamphetamine. Inherent in a system of advisory guidelines is that a district
court is free to arrive at a different sentence than the one suggested by the
guidelines, as long as the sentence is consistent with the purposes of punishment
pronounced in § 3553(a). See United States v. Booker, 543 U.S. 220, 244–49
(2005) (rendering guidelines advisory). That is precisely what the district court did
here, concluding that 92 months was necessary to deter others from engaging in
methamphetamine distribution and that the recommended guidelines range was too
lenient given the drug quantity involved and the serious consequences of
methamphetamine use. Varying upward by 14 months was not unreasonable,
particularly because Mr. Cervantes’ statutory maximum was life imprisonment.
See United States v. Valnor, 451 F.3d 744, 751–52 (11th Cir. 2006) (affirming a
sentence as reasonable in part because it was well below the statutory maximum).

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See also United States v. Osorio-Moreno, 814 F.3d 1282, 1284 (11th Cir. 2016)
(affirming 120-month sentence where advisory guidelines range was 51 to 63
months).
Finally, Mr. Cervantes argues that the district court imposed an aboveguidelines sentence to avoid unwarranted sentencing disparities between himself—
who received a minor role reduction—and other similarly situated defendants who
had not. This argument is equally meritless. The district court explained that the
92-month sentence was proportionate to other sentences it had imposed in the past
for similarly situated defendants. Nothing in the record suggests that the district
court ignored Mr. Cervantes’ minor role.

Indeed, as the government points out,

had the district court truly ignored Mr. Cervantes’ two-level guidelines reduction,
it would have imposed a sentence in the range of 135 to 168 months.
Accordingly, we affirm Mr. Cervantes’ sentence as reasonable.
AFFIRMED.

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