USA v. Jose Rodriguez

Filing

Opinion issued by court as to Appellant Jose Antonio Rodriguez. 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: 16-14220

Date Filed: 01/25/2017

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14220
Non-Argument Calendar
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D.C. Docket No. 6:12-cr-00326-CEM-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO RODRIGUEZ,
a.k.a. Hector Mauel Reyes,
a.k.a. Hector Manuel Reyes Quinones,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 25, 2017)
Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:

Case: 16-14220

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Jose Rodriguez appeals his 18-month low-end guideline sentence, imposed
after entering a guilty plea to one count of failing to surrender for service of
sentence, in violation of 18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(ii). On appeal,
Rodriguez argues that the sentence imposed by the district court was substantively
unreasonable because it was unduly severe and failed to take into account both his
reason for committing the crime—his fear that he would be killed upon being
deported to Colombia for cooperating in the investigation against his brother—and
the fact that his criminal history category overstated the extent of his actual
criminal history. After careful review of the record and the parties’ briefs, we
affirm.
In 2012, Jose Rodriguez pleaded guilty, pursuant to a plea agreement, for
making a false statement on his United States passport application. Rodriguez was
sentenced to eight months in prison. Rodriguez was permitted to self-surrender to
serve his eight-month sentence, but instead he absconded. In 2015, Rodriguez was
arrested upon his attempt to re-enter the United States in Texas. He pleaded guilty
to, and was convicted of, failure to surrender for service of his sentence. Given the
applicable offense level and Rodriguez’s criminal history, the advisory-guidelines
range for his sentence was 18 to 24 months, with a statutory maximum of five
years. At sentencing, the district court considered Rodriguez’s argument including
his fear of his brother. But the district court gave greater weight to other factors
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and sentenced Rodriguez to 18 months in prison, the bottom of the guidelines
range.
The substantive reasonableness of a sentence is subject to a deferential
abuse-of-discretion standard of review. See Gall v. United States, 552 U.S. 38, 41
(2007). In reviewing a district court’s sentence for substantive unreasonableness,
we examine the totality of the circumstances to determine whether the statutory
factors in 18 U.S.C. § 3553(a) support the sentence in question. See United States
v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam).
Here, Rodriguez has not demonstrated that his sentence was substantively
unreasonable in light of the record and the § 3553(a) factors. See United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010) (noting that the party who challenges
the sentence bears the burden of showing that the sentence is unreasonable). First,
while Rodriguez argues that the court did not consider his reasons for failing to
report, the record indicates that the court did consider this argument and simply
accorded it less weight than the seriousness of the offense and the need to promote
respect for the law. The weight given to any specific § 3553(a) factor is committed
to the sound discretion of the district court. See United States v. Clay, 483 F.3d
739, 743 (11th Cir. 2007).
Next, if Rodriguez’s criminal-history argument is construed as a request for
a downward departure, because it mirrors the language of U.S.S.G. § 4A1.3, the
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court’s refusal to depart downward is not subject to appellate review. See United
States v. Webb, 139 F.3d 1390, 1394 (11th Cir. 1998). If Rodriguez’s criminal
history argument is construed as a request for the court to fully consider his
history, the record again indicates that the district did consider this argument, but
gave more weight to other factors, which it was entitled to do.
Finally, although we do not presume that a sentence falling within the
guideline range is reasonable, we ordinarily expect such a sentence to be
reasonable. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A
sentence imposed well below the statutory maximum penalty is another indicator
of a reasonable sentence. See Gonzalez, 550 F.3d at 1324. Thus, the fact that the
court’s 18-month sentence was the lowest end of the applicable guideline range of
18 to 24 months and was also well below the 5-year statutory maximum penalty
further indicates its substantive reasonableness. See id.; Hunt, 526 F.3d at 746.
Accordingly, we affirm.
AFFIRMED.

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