           Case: 16-14708   Date Filed: 07/11/2017   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-14708
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 5:15-cr-00030-RH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

EDEGARDO OSORNO RODRIGUEZ,
a.k.a. Edgar Rodriguez,
a.k.a. Edgar Panama,
a.k.a. Edgar,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                             (July 11, 2017)

Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Edegardo Osorno Rodriguez appeals his concurrent 60-month sentences,

which represented a 23-month upward variance from the high end of the guideline

range, imposed after pleading guilty to 13 counts arising out of his participation in

a conspiracy to transport illegal aliens in interstate commerce to engage in

prostitution. On appeal, he argues that sentences were procedurally unreasonable

because the court relied on the unsupported assumption that the prostitutes were

victims and failed to adequately explain why upwardly varied sentences were

necessary to achieve the purposes set forth in 18 U.S.C. § 3553(a). He further

argues that the sentences were substantively unreasonable because the court gave

weight to an impermissible factor—the particular vulnerability of the prostitutes—

and gave inordinate weight to the nature of the offense. Upon review of the record

and consideration of the parties’ briefs, we affirm.

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In determining

procedural reasonableness, we review a district court’s application of the

Guidelines de novo and its factual findings for clear error. United States v.

Arguedas, 86 F.3d 1054, 1059 (11th Cir. 1996). However, if a party does not raise

a procedural argument before the district court, we review only for plain error.

United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010). Under plain-error

review, we, at our discretion, may correct an error where (1) an error occurred;


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(2) the error was plain; and (3) the error affects substantial rights. United States v.

Olano, 507 U.S. 725, 732–36 (1993). When these three factors are met, we may

exercise discretion and correct the error if it “seriously affect[s] the fairness,

integrity or public reputation of the judicial proceedings.” Id. at 736 (quotation

omitted) (alteration in original). For an error to be plain, it must be “contrary to

explicit statutory provisions or to on-point precedent in this Court or the Supreme

Court.” United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (quotation

omitted).

      In reviewing the reasonableness of a sentence, we first consider whether the

district court committed a procedural error, such as failing to calculate or

improperly calculating the guideline range. Gall, 552 U.S. at 51. We ensure that

the district court treated the Guidelines as advisory, considered the § 3553(a)

factors, did not select a sentence based on clearly erroneous facts, and adequately

explained the chosen sentence. Id. The district court’s acknowledgment that it has

considered the § 3553(a) factors and the parties’ arguments is sufficient. United

States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). It is not required to state

on the record that it has explicitly considered each of the § 3553(a) factors or

discuss each of them. Id.

      After reviewing for procedural reasonableness, we consider the substantive

reasonableness of a sentence under the abuse-of-discretion standard. Gall, 552 U.S


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at 51. In reviewing a district court’s sentence for substantive unreasonableness, we

examine the totality of the circumstances to determine whether the statutory factors

in § 3553(a) support the sentence in question. United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008). The party who challenges the sentence bears the

burden of showing that the sentence is unreasonable in light of the record and the

§ 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      The district court’s sentence must be “sufficient, but not greater than

necessary to comply with the purposes” listed in § 3553(a)(2), including the need

for the sentence to reflect the seriousness of the offense and to promote respect for

the law, the need for adequate deterrence, the need to protect the public, and the

need to provide the defendant with educational or vocational training, medical

care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The court should

also consider the nature and circumstances of the offense and history and

characteristics of the defendant, the kinds of sentences available, the guideline

range, any pertinent policy statements of the Sentencing Commission, the need to

avoid unwarranted sentencing disparities, and the need to provide restitution to

victims. Id. § 3553(a)(1), (3)–(7). The weight given to any specific § 3553(a)

factor is committed to the sound discretion of the district court. United States v.

Clay, 483 F.3d 739, 743 (11th Cir. 2007).




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       We afford due deference to the district court in determining whether the

§ 3553(a) factors justify a variance and the extent of that variance. United States v.

Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009). A district court abuses its discretion

in imposing a sentence when it (1) fails to afford consideration to relevant factors,

(2) gives significant weight to an improper or irrelevant factor, or (3) commits a

clear error of judgment in considering the proper factors. United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010) (en banc). With regard to the third situation,

such a clear error of judgment occurs when a district court unreasonably weighs

the § 3553(a) factors and arrives at a sentence that fails to achieve the purposes set

out in § 3553(a)(2). Id. To determine whether a clear error of judgment has

occurred in a particular case, we make the sentencing calculus ourselves and

review the steps the district court took in determining the sentence it imposed. Id.

We must be “left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors” before

vacating a sentence. Id. at 1190.

      There is no presumption that a sentence imposed outside the applicable

guideline range is unreasonable or requirement that there be extraordinary

circumstances justifying a variance. Gall, 552 U.S. at 47. The district court is free

to consider any information relevant to a defendant’s background, character, and

conduct in imposing an upward variance. Tome, 611 F.3d at 1379 (citing 18


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U.S.C. § 3661). The fact that an above-guideline sentence is nonetheless

significantly below the statutory maximum is a further indicator of reasonableness.

United States v. McKinley, 732 F.3d 1291, 1299 (11th Cir. 2013) (affirming an

above-guideline 125-month sentence in part because it was well below the 240-

month statutory maximum).

         Chapter 3 of the guidelines provides for a victim-related adjustment to a

defendant’s base offense level where “the defendant knew or should have known

that a victim of the offense was a vulnerable victim.” U.S.S.G. § 3A1.1(b)(1). It

further provides for an additional increase where “the offense involved a large

number of vulnerable victims.” Id. § 3A1.1(b)(2). The guidelines do not define

“victim” for purposes of § 3A1.1. Application note 1 to U.S.S.G. § 2G1.1 defines

“victim” for purposes of that guideline as “a person transported, persuaded,

induced, enticed, or coerced to engage in, or travel for the purpose of engaging in,

a commercial sex act or prohibited sexual conduct, whether or not the person

consented to the commercial sex act or prohibited sexual conduct.” U.S.S.G.

§ 2G1.1, comment. (n.1). Application note 6 states that “[i]f the offense involved

more than ten victims, an upward departure may be warranted.” Id., comment.

(n.6).

         Here, as to Rodriguez’s argument that the district court procedurally erred in

imposing his sentences, he raises those arguments for the first time on appeal. We


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therefore will review his procedural reasonableness arguments only for plain error.

McNair, 605 F.3d at 1222. Rodriguez has identified no precedent from this Court

or the Supreme Court indicating that either a district court’s consideration of the

particular vulnerability of the women involved in a prostitution scheme or a district

court’s failure to provide a detailed explanation of its consideration of the

§ 3553(a) factors constitutes procedural error. As to Rodriguez’s arguments

regarding the substantive reasonableness of his sentences, he has not shown that

the district court abused its discretion by imposing above-guideline sentences.

Tome, 611 F.3d at 1378. The district court was free to give more weight to the

nature and circumstances of the offense—which would have included the

particular vulnerability of the women involved in the prostitution conspiracy—than

to other mitigating factors. Clay, 483 F.3d at 743. Accordingly, we affirm

Rodriguez’s concurrent 60-month sentences.

      AFFIRMED.




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