United States v. Gomez, No. 19-10609

• Decision Date: 14 April 2020
• Docket Number: No. 19-10609
• Citation: 955 F.3d 1250
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Andres GOMEZ, a.k.a. Andres Gomez Avellaneda, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

955 F.3d 1250

UNITED STATES of America, Plaintiff - Appellee,

v.Andres GOMEZ, a.k.a. Andres Gomez Avellaneda, Defendant - Appellant.

No. 19-10609

United States Court of Appeals, Eleventh Circuit.

April 14, 2020

Lauren Astigarraga, U.S. Attorney's Office, Nicole D. Mariani, Daniel Matzkin, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, MIAMI, FL, Sivashree Sundaram, U.S. Attorney's Office, FORT LAUDERDALE, FL, for Plaintiff - Appellee.

Robert E. Adler, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, WEST PALM BEACH, FL, Bernardo Lopez, Federal Public Defender's Office, FORT LAUDERDALE, FL, for Defendant - Appellant.

Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

Defendant Andres Gomez challenges the district court’s order that sentenced him to a 46-month term of incarceration (for illegally re-entering the United States) and a 21-month term (for violating the terms of his supervised release), with each sentence to run consecutively to one another and to a separate, undischarged eight-year state prison sentence. Gomez contends that this sentence is unreasonable because the district court failed to properly consider and weigh the sentencing factors in 18 U.S.C. § 3553(a). After careful review of the record, we affirm Gomez’s sentences.

I. Factual and Procedural Background

Gomez’s appeal is a consolidation of two federal actions. The first, Case No. 9:16-cr-80098-RLR-1, is the case against Gomez for violating the terms of a previously imposed term of supervised release. The second, Case No. 9:18-cr-80181-RLR-1, is the case against Gomez for illegally re-entering the United States in 2017 or 2018. We discuss each in turn before turning to the merits of this appeal.

a. Gomez’s Violation of Supervised Release

Gomez, a Mexican citizen, has an extensive history of illegally coming into the United States. He was voluntarily removed from the country in 1998. He subsequently re-entered the United States without authorization and was again removed in 2002. But he later sneaked back into the United States without authorization for (at least) the third time, and in May 2016 was arrested in Florida on state charges.

The May 2016 arrest put Gomez back on U.S. Immigration and Custom Enforcement’s ("ICE") radar, and on June 23, 2016, he was indicted for having unlawfully re-entered the United States in violation of 8 U.S.C. § 1326(a) and (b)(1). Gomez pled guilty on August 10, 2016, and was sentenced to 12 months’ imprisonment, followed by a two-year term of supervised release.

The district court’s sentence contained the standard mandatory conditions of supervised release, including a prohibition against committing another federal, state, or local crime. Because of Gomez’s immigration status, his sentence also included a special condition of supervised release, which required him to be surrendered to ICE’s custody for removal proceedings at the completion of his term of imprisonment. And while Gomez’s sentence contained a standard condition of supervised release that he report to his designated U.S. Probation Office within 72 hours of his release from prison and within the first fifteen days of each month, Gomez was not required to report to Probation so long as he resided outside of the United States. If Gomez reentered the United States within the term of his supervised release, though, he was required to report to the nearest U.S. Probation Office within 72 hours of his arrival.

Gomez’s term of imprisonment ended in June 2017, and he was deported to Mexico in July 2017. He didn’t stay away for long. Gomez came back to the United States in October 2017 and was arrested in Florida on charges of sexual battery with threat to retaliate on May 28, 2018. The facts of that incident were recounted in his Presentence Report ("PSR"): Gomez spent much of May 27, 2018 with the victim, and when she went to drop him off, Gomez assaulted and raped her. Gomez then threatened to hurt the victim and her son, who has Down’s Syndrome

, if she reported him, and claimed that he had someone watching her house. When the victim later, at the direction of law enforcement, called Gomez, he again threatened her and her children. Gomez pled guilty following his arrest and was sentenced to eight years’ imprisonment.¹

On June 1, 2018, the U.S. Probation Office filed with the district court a petition to revoke Gomez’s supervised release, charging Gomez with three violations of his supervised release. The first charge alleged that Gomez violated the special condition of his supervised release by re-entering the United States and failing to report to the nearest Probation Office within 72 hours. The second and third charges asserted that Gomez violated the mandatory condition of his supervised release that he refrain from transgressing the law, specifically by committing sexual battery with threat to retaliate, in violation of Fla. Stat. 794.011(4)(b), which is a first degree felony under Florida law (Charge 2), and by illegally re-entering the United States after removal, in violation of 8 U.S.C. § 1326(a) and (b)(1) (Charge 3).

Gomez admitted to the first and third charges at a hearing before a magistrate judge on October 19, 2018. As to the second charge, Gomez admitted, as he had done in Florida state court, to the lesser-included offense of sexual battery in violation of Fla. Stat. 794.011(5)(b), a second-degree felony under Florida law. The magistrate judge issued his Report & Recommendation ("R&R") on October 19, 2018, recommending that the district court accept Gomez’s admissions and find him guilty of committing the three violations of his supervised release. The district court adopted the R&R on November 13, 2018.

b. Gomez’s Illegal Re-Entry

The third charged violation of Gomez’s violation of supervised release—his illegal re-entry to the United States in 2017 or 2018—constituted a stand-alone federal offense. Accordingly, on September 13, 2018, a federal grand jury indicted Gomez of having unlawfully re-entered the country on or about May 28, 2018, in violation of 8 U.S.C. § 1326(a) and (b)(1). He pled guilty to the indictment on November 19, 2018.

c. Gomez’s Sentencing

Gomez’s cases were consolidated for sentencing, which took place on January 30, 2019. As to Gomez’s violation of his supervised release, Probation calculated that Gomez’s imprisonment range under the Sentencing Guidelines ("Guidelines") was 15 months to 21 months, based on a total offense level of 13 and a criminal-history category of II. The district court was statutorily authorized to revoke Gomez’s supervised release and send him to prison for up to two years for this offense. See 18 U.S.C. § 3583(e)(3).

Regarding his illegal-reentry conviction, Probation calculated that Gomez’s Guidelines range was 46 to 57 months. This was based on a total offense level 19, which included a ten-point enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(A) for Gomez’s sexual-battery conviction, and a criminal-history category of IV, which was also based, in part, on Gomez’s sexual-battery conviction. The maximum term of imprisonment for this offense was ten years. See 8 U.S.C. § 1326(b)(1).

The district court sentenced Gomez to 21 months’ imprisonment for violating his supervised release. The court explained that the punishment was not simply because Gomez had again illegally come into the country (though that "would be concerning"), but that a sentence at the top of the Guidelines range was necessary to maintain respect "for all of the [ 18 U.S.C. §] 3553 factors that must be accomplished, respect for the law, protecting the public and deterring Mr. Gomez and others." ECF No. 33 at 16.²

For his illegal re-entry charge, the district court sentenced Gomez to 46 months’ imprisonment and two years of supervised release, noting that Gomez had previously re-entered the country multiple times.

The district court ordered that Gomez’s sentences run consecutively to one another, and that the entire 67-month term run consecutively to his eight-year sentence for sexual battery. The court acknowledged the overlap between Gomez’s federal and state convictions but concluded that consecutive sentences were necessary, "given the history as conveyed about him in the [PSR], that he has [not] shown any respect for the law or that he has been deterred thus far by the sentence that the Court has imposed in the prior deportations." ECF No. 33 at 19. The district judge also explained that it was "gravely concerned about deterring" Gomez and "protecting the public from" him, emphasizing that "what Mr. Gomez did to the [rape] victim" gave her "grave concern." Id. at 19–20.

Gomez timely appealed both sentences and now argues that his sentences were substantively unreasonable. We disagree and affirm.

II. Standards of Review

We review the reasonableness of the district court’s sentences for an abuse of discretion, employing a two-step process. See United States v. Trailer , 827 F.3d 933, 935–36 (11th Cir. 2016) (per curiam). At the first step, we ensure that the district court did not commit a significant procedural error, such as miscalculating the Guidelines range, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to explain its chosen sentences. See Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

If the district court’s decision contains no significant procedural error, we review the substantive reasonableness of the sentences "through the prism of abuse of discretion." United States v. Pugh , 515 F.3d 1179, 1191 (11th Cir. 2008). "The party challenging a sentence has the burden of showing that the sentence is unreasonable in light of the entire record, the § 3553(a) factors, and the substantial deference afforded sentencing courts." United States v. Rosales-Bruno , 789 F.3d 1249, 1256 (11th Cir. 2015).

We likewise review for abuse...