USA v. Galdina Perez-Pineda

Filing

Opinion issued by court as to Appellant Galdina Perez-Pineda. 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: 16-17569

Date Filed: 06/29/2017

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17569
Non-Argument Calendar
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D.C. Docket No. 2:16-cr-00019-WCO-JCF-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GALDINA PEREZ-PINEDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 29, 2017)
Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:

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Galdina Perez-Pineda appeals her 12-month sentence, imposed after
pleading guilty to one count of illegal reentry by a deported alien, in violation of
8 U.S.C. § 1326(a) and (b)(1). Perez-Pineda entered the United States for the first
time in 2001, was granted 14 voluntary returns, and was deported in 2012
following a felony conviction. She reentered the U.S. illegally in 2015 and was
arrested by law enforcement in 2016. Perez-Pineda was transferred to the custody
of Immigration and Customs Enforcement (“ICE”) for more than two months
before being transferred to the custody of the U.S. Marshals for proceedings
related to the instant offense. On appeal, Perez-Pineda argues that her sentence is
substantively unreasonable, where the court declined to apply a downward
departure to credit her time served in ICE custody and failed to consider that the
12-month sentence would make her ineligible for early release for good behavior.
We review the substantive reasonableness of a sentence for abuse of
discretion, considering the totality of the circumstances. Gall v. United States, 552
U.S. 38, 51 (2007). The party challenging the sentence bears the burden to show it
is unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
We generally do not review the merits of a district court’s refusal to grant a
downward departure, but we may review de novo a defendant’s claim that the
district court mistakenly believed it lacked the authority to grant such a departure.
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United States v. Mignott, 184 F.3d 1288, 1289 (11th Cir. 1999). When nothing in
the record indicates otherwise, we will assume that the district court understood it
had the authority to depart downward, precluding jurisdiction to review those
claims. United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999).
A district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in § 3553(a)(2), including the need
to reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). In imposing its
sentence, the district court must also consider, among other factors, the nature and
circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, and the applicable guideline range. Id. § 3553(a)(1),
(3)-(4).
The weight accorded to 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). However, 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). Furthermore, a district court’s unjustified
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reliance on any one § 3553(a) factor to the detriment of all the others may be a
symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285,
1292 (11th Cir. 2006).
Although we do not automatically presume a sentence within the guideline
range to be reasonable, we ordinarily expect such a sentence to be reasonable.
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence well below
the statutory maximum penalty is another indicator of reasonableness. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Under the Guidelines, a
district court may grant a downward departure to a defendant convicted of
unlawfully entering the U.S. on the basis of time served in state custody. U.S.S.G.
§ 2L1.2, comment. (n.6).
As an initial matter, we do not have jurisdiction to review the merits of the
district court’s refusal to grant the downward departure for time served in ICE
custody because the record reflects that the court understood its authority to grant
the departure. See Mignott, 184 F.3d at 1289; Chase, 174 F.3d at 1195.
Perez-Pineda has not shown that her sentence is substantively unreasonable
because the court considered the § 3553(a) factors, such as her history of repeated
voluntary departures, the need to impose a sentence that acts as a deterrent and
promotes respect for the law, the kinds of sentences available, and the sentencing
range. See 18 U.S.C. § 3553(a)(1)-(4). Further, Perez-Pineda’s 12-month sentence
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was within the guideline range and well below the statutory maximum penalty of
120 months’ imprisonment, two indicators of a reasonable sentence. See 8 U.S.C.
§ 1326(b)(1); Hunt, 526 F.3d at 746; Gonzalez, 550 F.3d at 1324. Finally, PerezPineda does not cite to any authority to support her contention that the court’s
failure to consider whether she would be eligible for a good-behavior reduction
made her sentence unreasonable. Because she has not established that the court
improperly weighed the sentencing factors, committed a clear error of judgment, or
unjustly relied on one factor to the detriment of all the others, she has not shown
that the court abused its discretion. See Irey, 612 F.3d at 1189; Crisp, 454 F.3d at
1292. Accordingly, we affirm.
AFFIRMED.

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