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    United States v. Dunieskis Rodriguez Pinero, 11th Cir. (2009)

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    The United States Court of Appeals for the Eleventh Circuit upheld Dunieskis Rodriguez Pinero's 120-month sentence for conspiracy to smuggle aliens into the United States, which exceeded the guideline range by 42 months. The court found the sentence was procedurally and substantively reasonable. Procedurally, the district court properly calculated the guidelines, considered the 18 U.S.C. § 3553(a) factors, and explained its reasoning. Substantively, the district court acted within its discretion in varying upward based on the death of one alien during Pinero's attempt to evade authorities and his criminal history.

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    United States v. Dunieskis Rodriguez Pinero, 11th Cir. (2009)

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    The United States Court of Appeals for the Eleventh Circuit upheld Dunieskis Rodriguez Pinero's 120-month sentence for conspiracy to smuggle aliens into the United States, which exceeded the guideline range by 42 months. The court found the sentence was procedurally and substantively reasonable. Procedurally, the district court properly calculated the guidelines, considered the 18 U.S.C. § 3553(a) factors, and explained its reasoning. Substantively, the district court acted within its discretion in varying upward based on the death of one alien during Pinero's attempt to evade authorities and his criminal history.

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    Filed: 2009-03-06 Precedential Status: Non-Precedential Docket: 08-13322

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    The United States Court of Appeals for the Eleventh Circuit upheld Dunieskis Rodriguez Pinero's 120-month sentence for conspiracy to smuggle aliens into the United States, which exceeded the guideline range by 42 months. The court found the sentence was procedurally and substantively reasonable. Procedurally, the district court properly calculated the guidelines, considered the 18 U.S.C. § 3553(a) factors, and explained its reasoning. Substantively, the district court acted within its discretion in varying upward based on the death of one alien during Pinero's attempt to evade authorities and his criminal history.

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    18 views5 pages

    United States v. Dunieskis Rodriguez Pinero, 11th Cir. (2009)

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    Scribd Government Docs
    The United States Court of Appeals for the Eleventh Circuit upheld Dunieskis Rodriguez Pinero's 120-month sentence for conspiracy to smuggle aliens into the United States, which exceeded the guideline range by 42 months. The court found the sentence was procedurally and substantively reasonable. Procedurally, the district court properly calculated the guidelines, considered the 18 U.S.C. § 3553(a) factors, and explained its reasoning. Substantively, the district court acted within its discretion in varying upward based on the death of one alien during Pinero's attempt to evade authorities and his criminal history.

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    of 5

    [DO NOT PUBLISH]

    IN THE UNITED STATES COURT OF APPEALS


    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 08-13322
    Non-Argument Calendar
    ________________________

    FILED
    U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    MARCH 6, 2009
    THOMAS K. KAHN
    CLERK

    D. C. Docket No. 07-10053-CR-KMM


    UNITED STATES OF AMERICA,

    Plaintiff-Appellee,
    versus
    DUNIESKIS RODRIGUEZ PINERO,
    a.k.a. Pineriro Domieque-Rodriguez,
    Defendant-Appellant.

    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (March 6, 2009)
    Before CARNES, BARKETT and WILSON, Circuit Judges.
    PER CURIAM:

    Dunieskis Rodriguez Pinero appeals his sentence after pleading guilty to


    conspiracy to smuggle aliens into the United States, in violation of
    8 U.S.C. 1324(a)(1)(A)(iv).1 On appeal, Pinero argues that his 120-month
    sentence is procedurally and substantively unreasonable because it exceeds the
    guideline range, which accounted for his conduct, the death of one of the aliens,
    and his criminal history, by 42 months.
    I.
    We review a final sentence under the guidelines for reasonableness. United
    States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). In conducting this review,
    we apply a deferential abuse of discretion standard. Gall v. United States,
    552 U.S. __, __, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). A defendant
    challenging his sentence bears the burden of establishing that it is unreasonable.
    Talley, 431 F.3d at 788.
    We first review whether the district court committed a procedural error,
    such as incorrectly calculating the Guidelines, treating the Guidelines as
    mandatory, failing to consider the 3553(a) factors, imposing a sentence based on

    On appeal, Pinero does not challenge: (1) his convictions; (2) his 60-month sentence for
    failure to obey a United States Coast Guard (USCG) order to heave to, in violation of
    18 U.S.C. 2237(a)(1), (2) (Count 14); or (3) the district courts calculation of the Guidelines.
    Therefore, he abandoned any arguments with respect to those issues. United States v. Blasco,
    702 F.2d 1315, 1332 n.28 (11th Cir. 1983).
    2

    clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall,
    552 U.S. at ___, 128 S.Ct. at 597. Procedurally, a district court is not required to
    give notice that it intends to impose an above guideline range sentence. Irizarry
    v. Unites States, ___ U.S. ____, ____, 128 S.Ct. 2198, 2202-03, 171 L.Ed.2d 28
    (2008). Further, a court may consider conduct that supported enhancement of a
    defendants guideline offense level to vary upward from the recommended
    guideline range. United States v. Amedeo, 487 F.3d 823, 833-34 (11th Cir.),
    cert. denied, 128 S.Ct. 671 (2007).
    If there are no procedural errors in the sentence, we then consider the
    substantive reasonableness of the sentence imposed under an abuse-of-discretion
    standard. Gall, 552 U.S. at ___, 128 S.Ct. at 597. The review involves inquiring
    into whether the 3353(a) factors support the sentence. Id. at ___, 128 S.Ct. at
    600. The factors presented in 3553(a) include:
    (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, to promote respect for the law, and to provide just
    punishment for the offense; (3) the need for deterrence; (4) the need
    to protect the public; (5) the need to provide the defendant with
    needed educational or vocational training or medical care; (6) the
    kinds of sentences available; (7) the Sentencing Guideline range; (8)
    pertinent policy statements of the Sentencing Commission; (9) the
    need to avoid unwarranted sentencing disparities; and (10) the need to
    provide restitution to victims.

    Talley, 431 F3d at 786; see 18 U.S.C. 3553(a). After considering these factors,
    the court must make an individualized assessment based on the facts presented.
    Gall, 552 U.S. at __, 128 S.Ct. at 597. However, the sentencing court is not
    required to discuss each individual factor when determining a sentence. United
    States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005).
    We have acknowledged that the Supreme Court in Rita v. United States,
    551 U.S. __, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), has upheld other circuits
    decisions recognizing a presumption of reasonableness for within-range sentences,
    but we do not presume reasonable a sentence within the properly calculated
    Guideline range. United States v. Campbell, 491 F.3d 1306, 1313-14
    (11th Cir. 2007). We have recognized that there is a range of reasonable
    sentences from which the district court may choose. Talley, 431 F.3d at 788.
    Having reviewed the record and the briefs of the parties, we discern no
    error. Pineros sentence is procedurally reasonable because the district court
    correctly calculated the Guidelines, treated the Guidelines as advisory, considered
    3553(a)s factors, and explained its chosen sentence. The district court was not
    required to give advance notice that it intended to upwardly vary from the
    Guidelines. See Irizarry, ___ U.S. at ____, 128 S.Ct. at 2202-03. Further, the
    district court was not prohibited from considering aspects of Pineros conduct that

    enhanced his guideline offense level. See Amedeo, 487 F.3d at 833-34. Likewise,
    Pineros sentence is substantively reasonable. In light of the life-ending injuries
    sustained by one of the aliens during Pineros 1 hour attempt to evade Coast
    Guard officials and Pineros criminal history, the district court did not abuse its
    discretion in finding that the advisory guideline range was inadequate and
    determining that a substantially higher sentence was appropriate and reasonable.
    Accordingly, we affirm.
    AFFIRMED.

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