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Summary: Case: 19-10677 Date Filed: 07/14/2020 Page: 1 of 20 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-10677 Non-Argument Calendar _ D.C. Docket No. 1:17-cr-20013-JEM-3 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JHOAN STIVEN CARREAZO ASPRILLA, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (July 14, 2020) Case: 19-10677 Date Filed: 07/14/2020 Page: 2 of 20 Before WILSON, BRANCH, and HULL
Summary: Case: 19-10677 Date Filed: 07/14/2020 Page: 1 of 20 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-10677 Non-Argument Calendar _ D.C. Docket No. 1:17-cr-20013-JEM-3 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JHOAN STIVEN CARREAZO ASPRILLA, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (July 14, 2020) Case: 19-10677 Date Filed: 07/14/2020 Page: 2 of 20 Before WILSON, BRANCH, and HULL,..
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Case: 19-10677 Date Filed: 07/14/2020 Page: 1 of 20
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10677
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cr-20013-JEM-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JHOAN STIVEN CARREAZO ASPRILLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 14, 2020)
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Before WILSON, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
In September 2016, Jhoan Stiven Careazzo Asprilla (“Asprilla”), along with
Carlos Ibarguen Palacios (“Ibarguen Palacios”), both Colombian citizens, took
three Cuban nationals on Ibarguen Palacios’s boat through the Colombian waters
towards the Panamanian border, where the aliens planned to continue their journey
to the United States. During that trip, Asprilla and Ibarguen Palacios raped and
murdered one Cuban national and murdered another. The third Cuban national
escaped and alerted the Colombian authorities. Colombian law enforcement
arrested Asprilla and Ibarguen Palacios. The United States Department of
Homeland Security (“DHS”) identified the two smugglers as participants in an
alien smuggling operation, and Colombia extradited them both to the United
States. Asprilla was then charged, and pleaded guilty to, one count of conspiracy
to encourage and induce aliens to enter the United States, resulting in death, in
violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and three counts of encouraging and
inducing aliens to enter the United States, resulting in death, in violation of 8
U.S.C. §§ 1324(a)(1)(A)(iv), (B)(iv), and (B)(iii). The United States District Court
for the Southern District of Florida sentenced him to 600 months in prison.
On appeal, Asprilla asserts the district court erred in four respects. First, he
claims the district court wrongly refused to grant him a downward departure even
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though his case was not a typical “heartland” case. Second, he argues the district
court erred in applying a first-degree murder cross-reference because he did not
commit the crime with malice and the underlying offense (alien smuggling) cannot
serve as a predicate for the felony-murder rule. Third, he contends that the district
court failed to adequately explain its reasons for imposing his 600 months
sentence. Fourth, he asserts the district court abused its discretion in imposing a
substantively unreasonable sentence of 600 months. For the reasons that follow,
we affirm.
I. Background
In July 2016, two Cuban nationals, “E.M.A.” and “L.S.C.,” began their
journey to the United States. They flew from Cuba to Guyana, then illegally
crossed through Brazil and Venezuela, arriving in Colombia in August 2016. Once
there, they sought to arrange transportation to smuggle them to Panama, Mexico,
and ultimately, the United States. While LS.C. and E.M.A. were staying at a hotel
in Cucuta, Colombia, Jorge Fernando Rivera Weir (“Rivera Weir”) approached
them and offered to transport them to the Panamanian border.
E.M.A. and L.S.C. arranged and paid for the journey and the group
continued to Turbo, Colombia. 1 After the payment was received, Rivera Weir
1
E.M.A.’s family in Miami, Florida wired $500 to Rivera Weir as a down payment for
the trip. After the group arrived at a hotel in Turbo, Colombia, E.M.A.’s family wired an
additional $1,400 to a person designated by Rivera Weir.
3
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introduced E.M.A. and L.S.C. to his two associates: Ibarguen Palacios and Fredis
Valencia Palacios (“Valencia Palacios”). Rivera Weir explained that Ibarguen
Palacios and Valencia Palacios operated the boat that Rivera Weir used to transport
people through the Colombia rivers to the Panamanian border. Ibarguen Palacios
would captain the boat.
Although Rivera Weir only offered transport to the Panamanian border, the
Cuban nationals intended to cross the United States border. E.M.A. and L.S.C.
told Rivera Weir, Ibarguen Palacios, and Valencia Palacios (together, the
“smugglers”) that they were travelling to the United States and planned to
ultimately settle in Miami. Another Cuban national, D.E.L.S., arrived at the hotel
in Turbo and decided to join the group, informing the smugglers that he too was
travelling to the United States.
On the morning of September 7, 2016, Ibarguen Palacios and another
smuggler, the appellant here, Asprilla, set off on a vessel with the three Cuban
nationals, heading towards the Panamanian border.2 Before the group departed,
Asprilla and Ibarguen Palacios agreed that they would rob E.M.A., L.S.C., and
D.E.L.S. during the trip, because another smuggler had told them that the Cubans
2
The group, including Valencia Palacios, had attempted to leave on September 6, but
shortly after departing, the boat began to take on water, forcing them to return to shore. Ibarguen
Palacios took the three Cuban nationals back to his home in Turbo, where they spent the night.
They left on a different vessel the next day. No information was provided as to why or how
Asprilla came to take the place of Valencia Palacios.
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had “a lot” of money. At some point during the trip, Ibarguen Palacios and
Asprilla executed their plan: Ibarguen Palacios brandished a firearm and Asprilla
pulled a knife on E.M.A., L.S.C., and D.E.L.S. At Asprilla’s direction, Ibarguen
Palacios tied the wrists of L.S.C. and D.E.L.S. and threw them overboard but
pulled them up so their heads were just above the water and anchored them with
rope to the inside of the boat. Asprilla and Ibarguen Palacios first took turns
sexually assaulting E.M.A. and then killed her by cutting her throat. Next, they
brought D.E.L.S. back into the boat and then cut his throat, killing him. While
Asprilla and Ibarguen Palacios struggled with D.E.L.S., L.S.C. freed himself from
his bindings, swam away from the vessel, and hid in the surrounding mangroves.
Asprilla and Ibarguen Palacios tried to find L.S.C. in the mangroves but eventually
abandoned their search.
A local fisherman discovered L.S.C. the next day. L.S.C. directed the
Colombian authorities to the location of the murders. There, the authorities
retrieved the bodies of E.M.A. and D.E.L.S., which had their throats and stomachs
cut open. The bodies were tied together and submerged in the water. L.S.C. also
identified photographs of Rivera Weir, Ibarguen Palacios, Asprilla, and Valencia
Palacios as the men who had agreed to smuggle the victims. He specifically
identified Ibarguen Palacios and Asprilla as the men who raped and killed E.M.A.
and killed D.E.L.S.
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Just three days after the murders, Colombian law enforcement officials
arrested Ibarguen Palacios and Asprilla at a hotel in Turbo, Colombia. The police
recovered some of the victims’ personal items in their hotel rooms, and discovered
more of the victims’ personal property, as well as the vessel used during the
smuggling venture and a homemade firearm, in Ibarguen Palacios’s home.
Ibarguen Palacio and Asprilla pleaded guilty in Colombia to murder, rape,
aggravated robbery, and femicide and were each sentenced to 43 years and 6
months in prison.
On January 6, 2017, a grand jury in the Southern District of Florida returned
an indictment charging Asprilla with four counts: conspiracy to encourage and
induce aliens to come and reside in the United States in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I) (Count 1) and knowingly encouraging an alien to enter and
reside in the United States in reckless disregard of the law in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iv), (B)(iv), and (B)(iii) (Counts 2-4). Colombia extradited
Ibarguen Palacios, Asprilla, and Valencia Palacios to the United States on
November 9, 2017.3 As part of the extradition agreement, the United States
assured Colombia that Asprilla would not be sentenced to death or life
imprisonment.
3
Rivera Weir remains a fugitive.
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On October 24, 2018, Asprilla pleaded guilty to all four counts. A United
States probation officer prepared a Presentence Investigation Report (“PSI”). The
PSI noted that Asprilla admitted that “he and Ibarguen had a plan to rob [the
victims] because they were told by an unindicted conspirator that they had ‘a lot’
of money.” Pursuant to § 2A1.1(a)—the first-degree murder guideline cross-
referenced in § 2L1.1, the alien smuggling guideline—the probation officer
assigned a base level of 43 for Asprilla’s murder of E.M.A. and D.E.L.S. The
probation officer increased Asprilla’s offense level by two points under § 3A1.3
because a victim was physically restrained in the course of the offense. The
probation officer then reduced Asprilla’s offense level by two points for
acceptance of responsibility under § 3E1.1(a) and issued another one-level
reduction for assisting the authorities in the investigation of his own conduct under
§ 3E1.1(b). With a total offense level of 42 and a criminal history category of I,
Asprilla’s applicable guideline range was 360 months to life imprisonment. 4 The
statutory maximum term of imprisonment was life.
4
The probation officer noted that the court may consider an upward departure under
§ 5K2.8 because Asprilla’s conduct was unusually heinous, cruel, brutal, or degrading to the
victim. Specifically, the probation officer noted that Asprilla threw two victims overboard and
anchored them to the boat with their head just above the water; that he raped and murdered
E.M.A. and murdered D.E.L.S. by cutting their throats; and that Asprilla’s guideline calculation
did not account for the rape of E.M.A. Asprilla objected, stating that an upward departure was
not warranted.
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Asprilla made several written objections to the PSI. Relevant to this appeal,
he objected to the cross-reference application of U.S.S.G. § 2A1.1—the first-
degree murder guideline—and contended that his offense level should have been
calculated pursuant to the cross-reference application of § 2A1.2—the second-
degree murder guideline. Notably, however, he did not object to paragraph 18,
which noted his admission that he intended to rob the victims.
Asprilla also filed a sentencing memorandum requesting a downward
variance from the sentencing guidelines. He argued that a bottom of the guideline
total sentence of 360 months combined with the sentence he had to serve in
Colombia would be a de facto life sentence, and thus would violate the intent and
spirit of the extradition agreement, as well as the Eighth Amendment’s prohibition
on unusual and cruel punishment.
Prior to sentencing, the government filed a memorandum in aid of
sentencing, contending that the probation officer correctly calculated Asprilla’s
guideline range using § 2A1.1 through the § 2L1.1 cross-reference based on his
relevant conduct. The government argued that the nature of Asprilla’s offense
conduct, his character, and the need to afford adequate deterrence and to protect
the public made a 600-month total sentence reasonable.
At sentencing, the government argued that the cross-reference applied
because Asprilla acted knowingly and willfully with knowledge, and that, although
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“the murders were not premeditated in several days in advance,” Asprilla
”certainly [had] an opportunity for reflection and deliberation.” In response,
Asprilla adopted Ibarguen Palacios’s argument that the two did not commit the
murders in the context of an enumerated first-degree felony-murder offense as set
forth in 18 U.S.C. § 1111. Rather, Aspirilla argued the murders were perpetrated
in commission of an alien smuggling offense.5 Asprilla further contended that the
murders were not premeditated, but instead qualified as more of “a heat of passion,
spur of the moment second degree kind of murder or homicide.” The court
overruled Asprilla’s objection and concluded that the first-degree murder cross-
reference applied.
The district court subsequently adopted the guideline calculation contained
in the PSI and assigned a base offense level of 42. Asprilla reiterated his argument
for a downward departure due to his sentence in Colombia. The court stated that it
had considered “the statements of all the parties, the presentence report which
contains the advisory guidelines and the statutory factors set forth in 18 U.S.C.
§ 3553(a)” and imposed concurrent 600-month sentences for each count, followed
by 3 years of supervised release as to each count. Asprilla objected to the
sentences and stated that he believed that the court failed to calculate the guidelines
5
18 U.S.C. § 1111 enumerates a list of offenses that qualify for a first-degree felony-
murder. Alien smuggling is not one of them. See generally 18 U.S.C. § 1111.
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correctly, relied on erroneous facts, and failed to adequately consider the § 3553
factors that he had mentioned in his motion for a downward variance. Asprilla
timely appealed.
II. Discussion
Generally, this Court reviews the reasonableness of a sentence under the
deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41
(2007). In reviewing the reasonableness of a sentence, this Court conducts a two-
step inquiry by first ensuring that there was no significant procedural error and
then examining whether the sentence was substantively reasonable. United States
v. Sarras,
575 F.3d 1191, 1219 (11th Cir. 2009). The district court commits a
significant procedural error if it calculates the guidelines incorrectly, fails to
consider the § 3553(a) factors, 6 bases the sentence on clearly erroneous facts,
neglects to explain the sentence, or treats the guidelines as mandatory rather than
advisory. Gall, 552 U.S at 51.
6
The factors a district court must consider are:
(1) “the nature and circumstances of the offense and the history and
characteristics of the defendant;” (2) the need “to reflect the seriousness of the
offense;” (3) the need “to afford adequate deterrence to criminal conduct; (4) the
need “to protect the public from further crimes of the defendant; (5) the need “to
provide the defendant with . . . correctional treatment in the most effective
manner;” (6)”the kinds of sentencing and the sentencing range established for the
applicable category of offense;” and (7) “any pertinent policy statement.”
18 U.S.C.A. § 3533(a).
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The party challenging the sentence bears the burden of demonstrating that
the sentence is unreasonable in light of the record, the factors listed in 18 U.S.C.
§ 3553(a), and the substantial deference afforded sentencing courts. United States
v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). “In reviewing the
reasonableness of a sentence, we must . . . consider the totality of the facts and
circumstances.” United States v. Irey,
612 F.3d 1160, 1189–90 (11th Cir. 2010) (en
banc) (citing United States v. Pugh,
515 F.3d 1179, 1192 (11th Cir. 2008). We
accept the district court’s findings of facts unless they are clearly erroneous.
Irey,
612 F.3d at 1190. Still, we should consider “additional salient facts that were
elicited, and uncontroverted.”
Pugh, 515 F.3d at 1192.
We review the district court’s factual findings for clear error and its
application of the sentencing guidelines to those facts de novo, see United States v.
Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). In order to be clearly erroneous,
the finding of the district court must leave this Court after a review of all the
evidence with a “definite and firm conviction that a mistake has been committed.”
United States v. Matchett,
802 F.3d 1185, 1191 (11th Cir. 2015). However, a
factual finding cannot be clearly erroneous when the factfinder is choosing
between two permissible views of the evidence. United States v. Saingerard,
621
F.3d 1341, 1343 (11th Cir. 2010) (citing United States v. Izquierdo,
448 F.3d 1269,
1278 (11th Cir. 2006)). The government is required to prove by a preponderance
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of the evidence that an enhancement is applicable, see United States v. Kinard, 472
F.3d 1294, 1298 (11th Cir. 2006), and the defendant’s relevant conduct. See
United States v. Maddox,
803 F.3d 1215, 1220 (11th Cir. 2015). The sentencing
court must consider all relevant conduct, as described in U.S.S.G. § 1B1.3, when
determining a defendant’s sentence, which this Court reviews for clear error.
United States v. Siegelman,
786 F.3d 1322, 1332 (11th Cir. 2015). Relevant
conduct is defined broadly and includes uncharged conduct that is proven by a
preponderance of the evidence at sentencing.
Id. at 1332. 7 If no party objects to
allegations of fact contained in a PSI, the fact is admitted for sentencing purposes.
United States v. Wade,
458 F.3d 1273, 1277 (11th Cir. 2006).
A. Whether the district court imposed a procedurally unreasonable
sentence
Asprilla contends that the district court imposed a procedurally unreasonable
sentence because it failed to (1) grant a downward departure considering the
factors that took his case out of the heartland, (2) calculate properly his guideline
range by incorrectly applying the first degree murder enhancement to his alien
7
The Sentencing Guidelines define relevant conduct to include “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the offense of conviction . . . or in the
course of attempting to avoid detection or responsibility for that offense.”
U.S.S.G. § 1B1.3(a)(1)(A)-(B).
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smuggling conviction, and (3) explain adequately its reasons for Asprilla’s 600-
months sentence. We address each argument in turn.
1. Downward Departure
Asprilla first argues that the district court erred in not granting him a
downward departure because his case was not a typical “heartland” case as he had
already pleaded guilty to the same acts, and been sentenced, in Colombia. But to
the extent Asprilla seeks to appeal the denial of his motion for a downward
departure, we lack jurisdiction to review a district court’s decision to deny a
motion for a downward departure where, as in this case, the district court merely
exercised its discretion to deny the motion and was not operating under the
mistaken belief that it lacked the authority to grant a departure. United States v.
Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006) (“We lack jurisdiction to review a
district court’s decision to deny a downward departure unless the district court
incorrectly believed that it lacked authority to grant the departure.”).
2. Enhancement under § 2A1.1 pursuant to U.S.S.G. § 2L1.1(c)
Asprilla’s next claim on appeal is that the district court erred in applying a
first-degree murder cross-reference at sentencing. Asprilla was convicted of one
count of conspiracy to encourage and induce aliens to enter the United States,
resulting in death, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and three counts
of encouraging and inducing aliens to enter the United States, resulting in death, in
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violation of 8 U.S.C. § 1324(a)(1)(A)(iv), (B)(iv), and (B)(iii). Accordingly, the
district court sentenced him pursuant to U.S.S.G. § 2L1.1, which governs
smuggling offenses. That guideline specifies that “[i]f death resulted,” from the
defendant’s crime, courts should “apply the appropriate homicide guideline . . .”
U.S.S.G. § 2L1.1(c)(1). Here, the district court chose to apply the first-degree
murder guideline. The commentary to the first-degree murder sentencing guideline
explains that it applies (1) “in cases of premeditated killing” and (2) “when death
results from the commission of certain felonies” (the felony murder rule).
U.S.S.G. § 2A.1.1, cmt. (n. 1). Section 2A1.1 incorporates 18 U.S.C. § 1111, the
federal murder statute. In accordance with § 1111, those certain felonies include
arson, kidnapping, aggravated sexual abuse or sexual abuse, burglary, and robbery.
18 U.S.C. § 1111.8 Where, as here, the district court finds the cross-reference
applies, the base offense level is 43. U.S.S.G. § 2A.1.1(a).
8
18 U.S.C. § 1111 defines first-degree murder as:
[T]the unlawful killing of a human being with malice aforethought. Every murder
perpetrated by poison, lying in wait, or any other kind of willful, deliberate,
malicious, and premeditated killing; or committed in the perpetration of, or
attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage,
sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or
robbery; or perpetrated as part of a pattern or practice of assault or torture against
a child or children; or perpetrated from a premeditated design unlawfully and
maliciously to effect the death of any human being other than him who is killed, is
murder in the first degree.
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Asprilla claims that the first-degree cross reference does not apply to him
because he had not murdered E.M.A. and D.E.L.S with “malice aforethought” and
because at the time of the murders, he was smuggling aliens, which is not a
predicate felony for the felony murder rule.
His claims fail because Asprilla and Ibarguen Palacios killed E.M.A and
D.E.L.S. during the perpetuation of a robbery and an aggravated sexual assault—
both which are predicate felonies for the felony murder rule. Carreazo Asprilla
admitted that before they set out on the boat, he and Ibarguen Palacios planned to
rob the victims. And following their arrest, Colombian authorities found the
victims’ belongings in Ibarguen Palacios’s and Carreazo Asprilla’s hotel rooms, as
well as Ibarguen Palacios’s home. With regard to the sexual assault, Asprilla
readily participated in the rape of E.M.A. before he and Ibarguen Palacios
murdered E.M.A. and D.E.L.S. Moreover, Asprilla pleaded guilty to robbery and
rape in Colombia. Both robbery and rape are predicate felony offenses that qualify
Asprilla’s murders for first degree murder. 18 U.S.C. § 1111(a).
In applying the felony-murder cross reference, a district court is not limited
to considering the crime with which the defendant was charged and convicted: “the
Relevant Conduct provision [of the sentencing guidelines] directs a court to
sentence a defendant for uncharged conduct germane to the charge-offense by
authorizing it to consider events before, during, and after the offense conduct.”
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United States v. Ritsema, 31 F.3d 559, 566 (7th Cir.1994); see also United States v.
Behr,
93 F.3d 764, 765 (11th Cir. 1996) (“This Court broadly interprets the
provisions of the relevant conduct guideline.”) Before the murders, Asprilla and
Ibarguen Palacios raped E.M.A. After the murders, they robbed the victims.
Asprilla’s failure to object to these contentions—that he and Ibarguen Palacios
planned to (and did) rob the victims, that he participated in the sexual assault and
murder of E.M.A., and that he participated in the murder of D.E.L.S.—permitted
the district court to properly admit them for sentencing purposes. See
Wade, 458
F.3d at 1277. Because the evidence supports the district court’s finding that
Asprilla engaged in predicate offenses for the felony-murder rule—robbery and
sexual assault—when he murdered the victims, the district court correctly applied
the first-degree murder cross reference.
3. Sufficiency of Sentencing Explanation
Asprilla argues that the district court did not adequately explain its sentence,
specifically its consideration of his already-imposed Colombian sentence of 527-
months. Asprilla, however, failed to object to the district court’s explanation in
imposing his total 600-month sentence, and brought this claim for the first time on
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appeal, 9 and thus we review his claim for plain error. 10 See United States v.
Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014).
A sentencing court does not have to state every factor it relies upon: in
explaining the reasons for the sentence it imposes, the district court judge “should
set forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decision-making
authority.” Rita v. United States, 551 U.S. 338, 356 (2007); United States v.
Agbai,
497 F.3d 1226, 1230 (11th Cir. 2007). However, the amount of necessary
detail “depends upon circumstances” and even brief statements of reason are
sufficient if supported from the context and record underlying the district court’s
decision.
Rita, 551 U.S. at 356–58 (stating that the context and record supported
the sentence because the record made clear that the judge listened to all the
arguments, considered all supporting evidence, and was fully aware of defendant’s
9
The district court, while not explicitly mentioning the Colombian sentence in its
ultimate sentencing remarks, did engage in an extensive exchange with Asprilla and the
government as to the merits of a possible departure due to the Colombian sentence. This
exchange, however, does not constitute an objection to the sufficiency of the sentencing
explanation (a procedural claim as opposed to a substantive claim). Gall v. United States, 552
U.S. 38, 51 (2007) (stating that a sentence is procedurally unreasonable if the district court
“fail[s] to adequately explain the chosen sentence.”).
10
Under plain error review, this court may consider exercising its discretion to correct an
error where the defendant demonstrates: (1) an error occurred; (2) the error was plain; and (3) the
error affects substantial rights. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05
(2018). When these three factors are met, this court should exercise its discretion and correct the
error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.”
Id. at 1905 (quotation marks omitted).
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special condition and work history); see also United States v. Irey, 612 F.3d 1160,
1194–95 (11th Cir. 2010) (en banc) (holding there is no requirement for more
“detailed findings” or “more thorough explanation” when the record demonstrates
that “the judge listened to evidence and arguments and was aware of the various
factors the defendant put forward for a lower sentence”).
Here, the district court did not err in explaining Asprilla’s total sentence.
Before imposing his total sentence, the district court specifically stated that it
“considered the statement of the parties, the presentence report which contains the
advisory guidelines, and the statutory factors as set forth in 18 USC Section
3353(a).” Our review of the record confirms that the district court took these
considerations into account: (1) the district court had numerous exchanges with the
parties regarding elements of the crime, Asprilla’s involvement in the crime,
possible departure due to the sentence already imposed in Colombia, and a
statement from the Asprilla himself; (2) the district court engaged in a thorough
review of the PSI and Asprilla’s objections on the record; (3) lastly, the district
judge considered the § 3553(a) factors—thus the district court’s explanation was
sufficient. Irey, 612 F.3d at 1194-95. Accordingly, Asprilla’s total sentence is not
procedurally unreasonable.
B. Whether the district court imposed a substantively unreasonable
sentence
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Asprilla argues that district court did not give proper weight to the
sentencing factors, specifically that he had already been sentenced in a foreign
jurisdiction to 527-months. Asprilla, however, has not pointed to any precedent or
authority establishing that a district court must give weight and consideration—and
if it fails to do so the sentence is substantively unreasonable—to a sentence
imposed by a foreign jurisdiction for a different crime in computing its sentence.
Regardless, the district court did not impose a substantively unreasonable sentence.
A district court abuses its considerable discretion and imposes a
substantively unreasonable sentence 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.” Irey, 612 F.3d at 1189 (quotation marks omitted).
Because only a “rare sentence” will be substantively unreasonable, 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) (citing United States v. McQueen,
727 F.3d 1144, 1156 (11th Cir.
2013)).
The 600-month sentence is not substantively unreasonable. The district
court considered the statutory Section 3553(a) factors at sentencing: it highlighted
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Case: 19-10677 Date Filed: 07/14/2020 Page: 20 of 20
the seriousness of Asprilla’s “horrible crime,” the importance and deterrence for
the law, and the dangers of alien smuggling. 28 U.S.C. § 3553(a)(1)–(2), 4; United
States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (noting that the district court has
discretion to give different weights to specific § 3553(a) factors). The court then
considered the guidelines range and imposed a sentence within the guidelines
range (360 months to life) and below the statutory maximum (life). See United
States v. Hunt,
526 F.3d 739, 746 (11th Cir. 2008) (stating that this court ordinarily
expects a sentence within the guidelines range to be reasonable); United States v.
Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008) (stating that a sentence imposed
well below the statutory maximum penalty is an indicator of a reasonable
sentence). Thus, considering the totality of the circumstances and the district
court’s consideration of the § 3553(a) factors and sentencing guidelines, we give
“substantial deference” to the district court and determine that it did not abuse its
discretion in imposing Asprilla’s sentence.
Rosales-Bruno, 789 F.3d at 1256.
We conclude that Asprilla’s sentence was not procedurally or substantively
unreasonable, and we affirm.
AFFIRMED.
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