United States v. Cesar Alvarez

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________

No. 24-13912

Non-Argument Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

CESAR DIAZ ALVAREZ,

Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:24-cr-20290-KMM-2 ____________________

Before LUCK, ABUDU, and ANDERSON, Circuit Judges.

P ER CURIAM:

Cesar Diaz Alvarez appeals his forty-eight-month, above- guideline sentence, imposed after he pleaded guilty to aggravated reentry under 8 U.S.C. section 1326(a) and (b)(2). On appeal, he

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2 Opinion of the Court 24-13912 argues that his sentence was substantively unreasonable because the district court: (1) overemphasized his criminal history; (2) in- adequately considered mitigating factors; and (3) didn't account for unwarranted sentencing disparities. After careful review, we af- firm.

I.

Diaz Alvarez, a Venezuelan national, has been living ille- gally in the United States on-and-off since at least 1995. His time in the United States included eight criminal convictions between 1995 and 2011. In 1999—one year after he was convicted of drug traf- ficking in Miami—an immigration judge ordered Diaz Alvarez's re- moval, and he was deported. Diaz Alvarez reentered the United States, and, in 2010, he was indicted and charged with illegal reentry after deportation. Diaz Alvarez pleaded guilty to that of- fense and was sentenced to thirty months' imprisonment. In 2013, he was released and deported again.

In 2024, a Coast Guard cutter spotted a vessel off the coast of the Bahamas traveling toward the United States with its naviga- tion lights turned off. After following the vessel for several hours, when it was about ten nautical miles offshore (and within the ter- ritorial waters of the United States), the Coast Guard interdicted the vessel. Coast Guard officers found Diaz Alvarez aboard the vessel along with twenty-five others.

A federal grand jury returned a twenty-eight-count indict- ment against Diaz Alvarez and two other men on the vessel. The sole offense Diaz Alvarez was charged with was aggravated

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24-13912 Opinion of the Court 3 reentry. Diaz Alvarez pleaded guilty without a plea agreement, and the district court held a sentencing hearing. Diaz Alvarez's presentence investigation report calculated an offense level of fifteen and a guideline range of twenty-four to thirty months' imprisonment. Neither party objected to the re- port, and both argued that a bottom-of-the-guideline sentence was in order. Diaz Alvarez also asserted that there were mitigating fac- tors supporting a bottom-of-the-guideline sentence: first, he had immediately accepted responsibility for the crime by pleading guilty; and second, he had suffered brain damage during a political protest in Venezuela.

But as the district court explained, the guideline range did not account for the seriousness of Diaz Alvarez's criminal history. The district court also emphasized that Diaz Alvarez had been pre- viously convicted of a similar crime—reentry after deportation— and was undeterred. After considering the presentence investiga- tion report, the parties' arguments, and the sentencing factors, the district court found that a guideline sentence was not appropriate and sentenced Diaz Alvarez to forty-eight-months' imprison- ment—an eighteen-month upward variance.

II.

The sole issue on appeal is whether Diaz Alvarez's sentence was substantively unreasonable. We review the substantive rea- sonableness of a sentence by considering the totality of the circum- stances under the deferential abuse-of-discretion standard. Gall v.

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4 Opinion of the Court 24-13912 United States, 552 U.S. 38, 51 (2007). The party challenging the sen- tence has the burden to establish that it was unreasonable under the 18 U.S.C. section 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). 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 im- proper or irrelevant factor, or (3) commits a clear error of judg- ment in considering the proper factors." United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (citation modified). The section 3553(a) factors include the history and charac- teristics of the defendant, the nature and seriousness of the crime, the need for the sentence to promote respect for the law, provide just punishment, afford adequate deterrence, and protect the pub- lic from further crimes of the defendant, the guideline range, and

"the need to avoid unwarranted sentence disparities among de- fendants with similar records who have been found guilty of simi- lar conduct." 18 U.S.C. § 3553(a). Though the district court must consider the sentencing factors in imposing a sentence, it need not discuss each factor. United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).

The district court's above-guideline sentence was not sub- stantively unreasonable under the section 3553(a) factors. Diaz Al- varez had an extensive criminal history. Over sixteen years, he was convicted of battery, obstruction of justice (three times), posses- sion of cocaine and marijuana with the intent to distribute, posses- sion of a firearm with an altered serial number, aggravated fleeing

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24-13912 Opinion of the Court 5 and eluding, driving with a suspended license, stealing cable, un- lawfully applying for a driver's license (four counts), and perjury (four counts). This was also not Diaz Alvarez's first illegal entry conviction. He was convicted of the same offense in 2011, but his thirty-month-sentence did not deter him from breaking the law again. And his forty-eight-month sentence was well-below the twenty-year maximum for aggravated illegal reentry. See United States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014) ("A sentence im- posed well below the statutory maximum penalty is an indicator of a reasonable sentence.").

Diaz Alvarez raises three arguments in response. First, he contends that the guideline range already accounted for his crimi- nal history. Because his criminal history already increased his of- fense level, no additional consideration was necessary. But placing substantial weight on a defendant's record is not an abuse of discre- tion because five of the section 3553(a) factors relate to criminal history. United States v. Rosales-Bruno, 789 F.3d 1249, 1263 (11th Cir. 2015). And even when a defendant's "previous offenses were in- cluded in his criminal history and were therefore part of the calcu- lation of his guideline range," considering that history "fits squarely into one of the [section] 3553(a) factors, the history and character- istics of the offense," and is "a proper basis for the court's consider- ation." Williams, 526 F.3d at 1324 (citing 18 U.S.C. § 3661). Still, Diaz Alvarez argues that the district court "focused al- most exclusively" on his criminal record when imposing the sen-

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6 Opinion of the Court 24-13912 tence. "A district court's unjustified reliance on a single [sec- tion] 3553(a) factor may be a 'symptom' of an unreasonable sen- tence." Id. at 1322 (citation modified). But Diaz Alvarez is wrong that the court focused only on his criminal history. The district court explained that it considered the parties' statements, the presentence investigation report, and the other factors in imposing the above-guideline sentence. In addition, the district court specif- ically explained that it considered the seriousness of the offense and the need for deterrence. While the district court considered more than just Diaz Alvarez's criminal history, it did not need to give all the factors equal weight. See Rosales-Bruno, 789 F.3d at 1254. To the extent the district court emphasized Diaz Alvarez's criminal history, it had discretion to attach greater weight to that factor over the others. See id.

Second, Diaz Alvarez asserts that the district court failed to consider certain mitigating factors. Diaz Alvarez points to his ac- ceptance of responsibility for the offense by pleading guilty and the fact that he suffered brain damage after being beaten in a political protest in Venezuela. But the district court did consider Diaz Alva- rez's acceptance of responsibility. It lowered his offense level by three levels because of his early acceptance. See U.S.S.G. § 3E1.1. And the fact that the district court didn't specifically mention cer- tain mitigation does not mean that the sentence was substantively unreasonable. See United States v. Snipes, 611 F.3d 855, 873 (11th Cir. 2010) ("Although [the defendant] argues that there were miti- gating factors that the judge did not specifically mention at sentenc- ing, these facts . . . do not compel the conclusion that the sentence

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24-13912 Opinion of the Court 7 crafted in accordance with the [section] 3553(a) factors was sub- stantively unreasonable.").

Third, Diaz Alvarez maintains that his sentence created un- warranted sentencing disparities between him and his two code- fendants. See 18 U.S.C. § 3553(a)(6). The guidelines aim to "avoid[] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct."

United States v. Docampo, 573 F.3d 1091, 1102 (11th Cir. 2009) (quot- ing 28 U.S.C. § 991(b)(1)(B)). But "[a] well-founded claim of dispar- ity . . . assumes that apples are being compared to apples." Id. at 1101 (quoting United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005)).

Here, there is no apples-to-apples comparison because Diaz Alvarez was not similarly situated to his two codefendants. He was the only defendant convicted of aggravated reentry—a crime that is punishable by a twenty-year maximum sentence. See 8 U.S.C. § 1326(b)(2). Although one of the two codefendants was charged with a similar offense, illegal reentry, that offense was only punish- able by a two-year maximum sentence. See id. § 1326(a). And be- cause the other codefendant was not even charged with a similar offense, there was no "similar criminal conduct" to compare to Diaz Alvarez's conduct. Even if the codefendants had committed similar crimes, comparing sentences would not be appropriate be- cause Diaz Alvarez's criminal history was much more extensive. The district court, therefore, did not abuse its discretion when it

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8 Opinion of the Court 24-13912 determined that Diaz Alvarez's sentence did not create unwar- ranted sentencing disparities between Diaz Alvarez and his code- fendants.

AFFIRMED.

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