Filed: Nov. 19, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-12217 NOV 19, 2010 Non-Argument Calendar JOHN LEY CLERK _ D.C. Docket No. 1:09-cr-20875-PAS-2 UNITED STATES OF AMERICA, lllllllllllllllllllll Plaintiff - Appellee, versus JOSE RENE DELGADO, llllllllllllllllllll lDefendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (November 19, 2010) Before BARKETT, WILSON an
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-12217 NOV 19, 2010 Non-Argument Calendar JOHN LEY CLERK _ D.C. Docket No. 1:09-cr-20875-PAS-2 UNITED STATES OF AMERICA, lllllllllllllllllllll Plaintiff - Appellee, versus JOSE RENE DELGADO, llllllllllllllllllll lDefendant - Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (November 19, 2010) Before BARKETT, WILSON and..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12217 NOV 19, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:09-cr-20875-PAS-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
JOSE RENE DELGADO,
llllllllllllllllllll lDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 19, 2010)
Before BARKETT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Jose Rene Delgado appeals his mid-range guideline sentence of 45 months’
imprisonment after pleading guilty to conspiracy to possess stolen property, in
violation of 18 U.S.C. § 371, possession of stolen goods, in violation of 18 U.S.C.
§ 659, conspiracy to interfere with commerce by extortion, in violation of 18
U.S.C. § 1951(a), and interference with commerce by extortion, in violation of 18
U.S.C. § 1951(a).
Along with several co-conspirators, Delgado participated in a scheme to
steal, transport, and sell two containers of shrimp worth approximately $250,000.
Delgado and others stole the shrimp from a transportation depot in Jacksonville
and arranged for its transport to a man named Carl Cruz in Miami. Cruz arranged
for the shrimp’s storage and attempted to sell it, but law enforcement seized the
stolen shrimp before it could be sold. Delgado did not believe Cruz that the
shrimp had actually been seized, and so Delgado extorted Cruz.
On appeal, Delgado argues that his sentence was unreasonable because the
district court placed undue weight on his prior conviction for dealing in stolen
property to the exclusion of mitigating family circumstances.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States,
552 U.S. 38, 41 (2007). “[T]he party
who challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both th[e] record and the factors in [18 U.S.C. §]
3553(a).” United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). While the
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“district court’s unjustified reliance on a single § 3553(a) factor may be a
‘symptom’ of an unreasonable sentence . . . , the weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district
court.” United States v. Williams,
526 F.3d 1312, 1322 (11th Cir. 2008) (internal
citations, quotation, and alteration omitted). We ordinarily expect a sentence
within the guideline range to reasonable.
Talley, 431 F.3d at 788.
In this case, Delgado has not met his burden of establishing that his
sentence was unreasonable. He contends that the court gave too much weight to
his prior conviction for dealing in stolen property, but the court’s reliance on that
prior conviction was not “unjustified.” The district court properly recognized that
the prior offense was similar to the instant offenses, and it therefore
“demonstrate[d] recidivism.” The court also pointed out that, despite receiving no
jail time for that prior conviction, Delgado failed to “turn over a new leaf” and
move forward. Moreover, the district court did not rely on Delgado’s prior
conviction to the exclusion of the other § 3553(a) factors. The court pointed out
that Delgado expressed no remorse for the theft victims, failed to recognize the
health risks that his operation imposed on potential shrimp consumers, and
physically struck Cruz and threatened his family. Furthermore, and contrary to
Delgado’s contention, the district court did consider (and even sympathize with)
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his family circumstances, but nonetheless found that Delgado should have thought
of his family before committing the offenses. Because Delgado has not shown
that the district court abused its discretion, we affirm his sentence.
AFFIRMED.
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