United States v. Rosales-Bruno

Citation789 F.3d 1249
Decision Date19 June 2015
Docket NumberNo. 12–15089.,12–15089.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Jesus ROSALES–BRUNO, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

789 F.3d 1249

UNITED STATES of America, Plaintiff–Appellee
v.
Jesus ROSALES–BRUNO, Defendant–Appellant.

No. 12–15089.

United States Court of Appeals, Eleventh Circuit.

June 19, 2015.


789 F.3d 1250

Carol Herman, Wifredo A. Ferrer, Kathleen Mary Salyer, Anne Ruth Schultz, Benjamin Widlanski, U.S. Attorney's Office, Miami, FL, Theodore Cooperstein,

789 F.3d 1251

U.S. Attorney's Office, Fort Pierce, FL, for Plaintiff–Appellee.

Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, Fletcher Peacock, Federal Public Defender's Office, Fort Pierce, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 2:11–cr–14016–KMM–1.

Before ED CARNES, Chief Judge, WILSON, Circuit Judge, and CORRIGAN,* District Judge.

Opinion

ED CARNES, Chief Judge:

This is the second appeal to come before us involving a sentence imposed on Jesus Rosales–Bruno because of his conviction for illegally reentering the United States in violation of 8 U.S.C. § 1326. In the first appeal we vacated his original sentence after concluding the district court had erred in finding that his prior Florida conviction for false imprisonment qualified as a “crime of violence” conviction for enhancement purposes under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v. Rosales–Bruno, 676 F.3d 1017, 1024 (11th Cir.2012) (Rosales–Bruno I ). That error had increased Rosales–Bruno's advisory sentencing guidelines range to 70 to 87 months, and the district court had sentenced him to 87 months imprisonment.

On remand, the district court recalculated Rosales–Bruno's advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment. After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87–month prison term. That sentence was 60 months above the high end of Rosales–Bruno's revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment. The sole issue in this appeal is whether that sentence is substantively unreasonable.

I.

On August 4, 2007, Rosales–Bruno attacked his girlfriend, Edith Rodriguez. He shoved her into a stove, and when she tried to leave he punched her in the back and caused her to fall. When she fell he grabbed her by the face and pinned her between two beds. He then took out a cigarette lighter and threatened to burn her with it. Rosales–Bruno was arrested for that violent conduct.

Two months later, in October 2007, while he was out on bond, Rosales–Bruno attacked Rodriguez again. After pulling their 18–month–old daughter out of her arms, he punched Rodriguez at least five times and forced her into his car. She struggled and managed to escape, but Rosales–Bruno chased her down, threatened to kill her, grabbed her by the hair, pulled some of it out, and started choking her with his arm. When employees at a nearby business heard Rodriguez's screams for help, Rosales–Bruno released Rodriguez but took the little girl with him when he fled from the scene.

In November 2007, an Indian River County, Florida court convicted Rosales–Bruno of assault and battery for the first attack on Rodriguez, sentencing him to fifteen days in jail and a year of probation. While awaiting trial for battering Rodriguez the second time, Rosales–Bruno failed to report to his probation officer,

789 F.3d 1252

didn't complete required domestic-violence programs, and didn't pay probation fees. As a result, in April 2008, the court issued an arrest warrant for his violation of probation. Possibly because Rosales–Bruno's trial for charges arising from the second attack was scheduled for later in the month, that arrest warrant was not immediately served. Rosales–Bruno was convicted of battery and false imprisonment for the second attack. The court sentenced him to six months in jail and three years of probation. A month later, a United States Immigration Judge ordered that Rosales–Bruno, a Mexican national, be removed to Mexico, and he was deported on May 17, 2008.

Sometime in 2010, Rosales–Bruno crossed the border back into the United States in Arizona and then made his way back to Florida. In March 2011, he was arrested for violating probation on the April 2008 warrant. While he was in custody, Immigration and Customs Enforcement agents found that Rosales–Bruno was illegally in the United States after having been deported. As a result, he was indicted on one count of illegal reentry following deportation, in violation of 8 U.S.C. § 1326, the applicable penalty provision of which carried a statutory maximum sentence of 120 months. See 8 U.S.C. § 1326(b)(1). He pleaded guilty to that charge.

At his first sentencing for his illegal reentry conviction, Rosales–Bruno's presentence investigation report calculated his guidelines range as 70 to 87 months imprisonment. That range resulted in part from a 16–level enhancement of Rosales–Bruno's base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the PSR's characterization of his 2008 Florida conviction for false imprisonment as a conviction for a “crime of violence.” Rosales–Bruno objected to that enhancement, contending that a false imprisonment conviction was not categorically a crime of violence within the meaning of that enhancement. He had also pleaded guilty to battery in connection with the same incident that led to the conviction for false imprisonment but, as we noted in our earlier opinion, battery under Florida law is not categorically a crime of violence either. See Rosales–Bruno I, 676 F.3d at 1024 (citing Johnson v. United States, 559 U.S. 133, 138–44, 130 S.Ct. 1265, 1270–73, 176 L.Ed.2d 1 (2010) ). The district court properly did not consider the battery conviction as a crime of violence for purposes of the § 2L1.2(b)(1)(A)(ii) enhancement.

At that first sentence hearing, Rosales–Bruno also objected to the facts alleged in ¶ 30 of the PSR, which were taken from the police report filed in connection with his arrest for the crimes of false imprisonment and battery. He asserted that the police report was hearsay and that it was an inaccurate account of the events leading up to his arrest. His hearsay objection challenged only the court's use of the police report's facts “for the purpose of determining whether the [false imprisonment] conviction [was] a crime of violence.” Although he asserted that the report was not an accurate recitation of events, he conceded that the district court could consider the police report “for the purpose of the sentencing” except on the issue of whether the § 2L1.2(b)(1)(A)(ii) crime of violence enhancement applied. Specifically, he said: “[I]t depends on what the Court is considering. The Court could review [the police report] for the purpose of the sentencing, but not for the purpose of determining whether the predicate conviction is a crime of violence.” The district court overruled Rosales–Bruno's objections and sentenced him to 87 months imprisonment, the top of his guidelines range. He appealed that sentence, challenging the crime of violence enhancement

789 F.3d 1253

he had received for his false imprisonment conviction.

We agreed with Rosales–Bruno's contention that false imprisonment under Florida law is not categorically a crime of violence. See Rosales–Bruno I, 676 F.3d at 1022. We also decided that the record did not establish that Rosales–Bruno's 2008 Florida false imprisonment conviction had been under a statutory alternative that qualifies as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). Id. at 1023–24. For that reason, we vacated the sentence and remanded the case to the district court for resentencing without the crime of violence enhancement. Although we directed the court to consider the record and resentence Rosales–Bruno “in light of the 18 U.S.C. § 3553(a) factors,” we “express[ed] no opinion ... as to what sentence would now be appropriate.” Id. at 1024. We did not rule out the court reimposing the same sentence on remand so long as it was not based on treating Rosales–Bruno's false imprisonment conviction as a crime of violence under § 2L1.2(b)(1)(A)(ii).

Before Rosales–Bruno was resentenced, the probation office amended the PSR and recalculated his guidelines range without the 16–level crime of violence enhancement. The result was a range of 21 to 27 months. Even so, the district court imposed the same sentence as before, relying on the § 3553(a) factors to vary above the new guidelines range by 60 months. The court did so after conducting a full resentence hearing, during which it pointed to several factors supporting the upward variance under § 3553 : (1) the history and characteristics of the defendant, (2) the need to promote respect for the law, (3) the need to provide adequate deterrence, (4) the nature and circumstances of the present offense, and (5) the need to protect the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C).

In determining that an 87–month sentence was appropriate, the district court placed particular emphasis on Rosales–Bruno's...

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