USA v. Sergio Calderon

Filing

Opinion issued by court as to Appellant Sergio Calderon. 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.

Case: 16-13072

Date Filed: 01/23/2017

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13072
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20965-FAM-3

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO CALDERON,
a.k.a. Calderon,
a.k.a. Caldero,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 23, 2017)
Before ED CARNES, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:

Case: 16-13072

Date Filed: 01/23/2017

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Sergio Calderon pleaded guilty to conspiracy to possess with intent to
distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846, and the
district court sentenced him to 120 months imprisonment. Calderon appeals that
sentence, contending that it is substantively unreasonable.
I.
From April through November 2015 a confidential informant along with an
undercover agent made a total of twelve cocaine purchases from codefendant
Gomez Borges. A wiretap was then authorized and placed on Borges’ phone, and
agents recorded conversations between Borges, codefendant Jose Lopez Amado,
and Calderon concerning supplying and distributing cocaine. In late November
officers watched Borges enter an apartment and then leave carrying a suitcase.
They followed him to a truck yard, arrested him, and found that he was carrying
more than $28,000. They also arrested Amado at the truck yard and after
conducting a search found 16 kilograms of cocaine there. Calderon was then
arrested at the apartment where Borges had been after Calderon admitted to
officers that he was renting that apartment and that everything inside of it was his.
Inside of that apartment officers found two kilograms of cocaine, a money
counting machine, and over $2,000 in cash.
Calderon pleaded guilty to conspiracy to possess with intent to distribute 500
grams or more of cocaine, which carried with it a maximum sentence of 40 years
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imprisonment. The district court calculated his advisory guideline range as 51 to
63 months imprisonment based on a total offense level of 24 and a criminal history
category of I. The district court, however, imposed an upward variance and
sentenced Calderon to 120 months imprisonment. Calderon now appeals,
contending that his sentence was substantively unreasonable because (1) the
district court erroneously concluded that his criminal history category
underrepresented his criminal history and (2) the district court erroneously gave
too much weight to the fact that he had been arrested for a cocaine trafficking
offense committed after he pleaded guilty in this case but before he had been
sentenced.
II.
We review for abuse of discretion the reasonableness of a sentence. United
States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). “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.” Id. (quotation marks omitted). In other words, a sentence is
substantively unreasonable “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 [18 U.S.C.] § 3553(a) factors by arriving at a sentence that lies outside the
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range of reasonable sentences dictated by the facts of the case.” Id. at 1190
(quotation marks omitted).
Calderon first contends that the district court erred in concluding that his
criminal history was “seriously underrepresented” in the guideline calculation. 1 In
arriving at that conclusion the district court noted that Calderon had received no
criminal history points for his state conviction for trafficking 69.6 pounds of
marijuana. Further, the district court noted that Calderon had “got[ten] breaks” for
his past crimes, including one that involved violent conduct, because he had only
received probation for them. The district court did not abuse its discretion in using
that underrepresentation of Calderon’s criminal history as one reason to conclude
that a variance was proper to protect the public from further crimes and to reflect
Calderon’s criminal history. See 18 U.S.C. § 3553(a). Moreover, the sentence
imposed was well below the statutory maximum of 40 years imprisonment, which
also suggests that the sentence was substantively reasonable. See United States v.
McKinley, 732 F.3d 1291, 1299 (11th Cir. 2013) (noting that the imposition of a

1

We note that the guidelines provide that an upward departure may be warranted if “the
defendant’s criminal history category substantially underrepresents the seriousness of the
defendants conduct.” U.S.S.G. § 4A1.3(a)(1). Calderon does not argue that if the nature of his
criminal history was actually underrepresented the district court could not consider that as a
factor supporting its imposition of an upward variance instead of a departure. See United States
v. Moran, 778 F.3d 942, 983–84 (11th Cir. 2015) (holding that the district court did not abuse its
discretion by imposing an upward variance “after finding that [the defendant]’s criminal history
category of I understated the seriousness of his criminal history”).
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sentence below the statutory maximum was “a further indicator that the sentence
was reasonable”).
Calderon also contends that the district court erred in imposing a variance
based on his arrest for drug trafficking which occurred between his guilty plea and
the sentence hearing. Calderon does not argue that the district court should not
have considered the arrest at all but that it gave too much weight to the arrest in
imposing the variance. That arrest was only one of several reasons the district
court provided as supporting an upward variance, and, in any event, “[t]he weight
to be accorded any given § 3553(a) factor is a matter committed to the sound
discretion of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th
Cir. 2007) (quotation marks omitted). As a result, the district court did not abuse
its discretion by imposing the upward variance.
AFFIRMED.

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