              Case: 13-12859     Date Filed: 02/14/2014   Page: 1 of 5


                                                             [DO NOT PUBLISH]




                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-12859
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:13-cr-20039-DLG-1



UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,


                                         versus


ECLESIASTE PIERRE,
a.k.a. Eclesiaste Bradley Pierre,
a.k.a. Eclesiaste B. Pierre,
a.k.a. Pierre Eclesiase E. Saintoleme,
a.k.a. Eclesiase E. Saintoleme Pierre,


                                                              Defendant-Appellant.
                 Case: 13-12859        Date Filed: 02/14/2014       Page: 2 of 5


                                ________________________

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

                                      (February 14, 2014)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

       Eclesiaste Pierre, a native and citizen of Haiti, appeals his conviction and

sentence of 63-months’ imprisonment for attempting to re-enter the United States

without permission after having been removed, in violation of 8 U.S.C. § 1326(a).

On appeal, Pierre challenges the district court’s determination that his defense of

duress failed as a matter of law and argues that the court imposed an unreasonable

sentence. Upon review, 1 we affirm.

                                        I.      DURESS

       Assuming a justification defense is available for a violation of § 1326(a), it

requires a defendant to show, inter alia, “that the defendant was under unlawful

and present, imminent, and impending threat of death or serious bodily injury.”
       1
        We review de novo a district court’s determination that a defense fails as a matter of
law. See United States v. Thompson, 25 F.3d 1558 (11th Cir. 1994) (“Conclusions of law are
reviewed de novo.”).

        We review the reasonableness of a sentence under a deferential abuse of discretion
standard, Gall v. United States, 552 U.S. 38, 41 (2007), and reverse only if “left with the definite
and firm conviction that the district court committed a clear error of judgment in weighing the
§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case,” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en
banc) (quotation marks omitted).


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United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000). We have

previously stated that “[t]he requirement of immediacy of the threat is a rigorous

one” and that “circumstances justify a duress defense only when the coercive party

threatens immediate harm which the coerced party cannot reasonably escape.”

United States v. Sixty Acres in Etowah Cnty., 930 F.2d 857, 860-61 (11th Cir.

1991) (quotation marks omitted). Pierre failed to establish the immediacy element

because, by the time he illegally re-entered the United States, he had successfully

eluded the threat of serious bodily injury for at least five months. Moreover, Pierre

spent at least an hour at the airport in Haiti, and during this time he was neither

threatened by the gang members he suggests put him under duress, nor were any

gang members present. See id. at 861 (“In order that the danger may be viewed as

imminent and impending, it is ordinarily necessary to show that the coercing party

was present.” (quotation marks omitted)). Accordingly, the district court did not

err in rejecting Pierre’s duress defense as a matter of law.

                II.    REASONABLENESS OF THE SENTENCE

      Pierre challenges the reasonableness of his sentence on both substantive and

procedural grounds. Pierre argues his sentence was procedurally unreasonable

because the district court did not adequately consider the nature and circumstances




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of his offense or his history and characteristics.2 See 18 U.S.C. § 553(a)(1). This

argument fails in light of the district court’s statements that it considered all of the

parties’ arguments and the pre-sentence investigation report, which together

included all of the factors Pierre now argues the district court failed to consider.

See United States v. Bonilla, 463 F.3d 1176, 1182 (11th Cir. 2006) (“[N]othing in

this Circuit’s precedent . . . requires the district court . . . to articulate its

consideration of each individual § 3553(a) factor, particularly where, as here, it is

obvious the court considered many of the § 3553(a) factors . . . .”). Pierre next

argues his sentence was substantively unreasonable because it was too harsh in

light of his cultural assimilation and the extent to which he acted under threats of

bodily harm (even if, as the district court had concluded, these threats did not

constitute a complete defense). We reject Pierre’s argument, noting first that his

sentence of 63 months was at the low end of his guideline range, see United States

v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (“[O]rdinarily we would expect a

sentence within the Guidelines range to be reasonable.”), and well below the

maximum authorized sentence of 20 years, see United States v. Winingear, 422

F.3d 1241, 1246 (11th Cir. 2005). Taking these facts together with Pierre’s long

history of arrests and convictions, many of which arrests and convictions were
       2
         Pierre also argues for the first time in his reply brief that the district court should not
have imposed a 16-point enhancement under U.S.S.G. § 2L1.2(b)(1)(A). Because Pierre raised
this argument for the first time in his reply brief, the argument is waived, and we do not consider
it. See United States v. Magluta, 418 F.3d 1166, 1185-86 (11th Cir. 2005) (concluding a
counseled defendant abandoned an issue raised for the first time in his reply brief).


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commented on by the district court but not assigned criminal history points in

calculating Pierre’s guideline range, Pierre has not shown that the sentence the

district court imposed was “outside the range of reasonable sentences dictated by

the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(en banc) (quotation marks omitted). Accordingly, the district court did not abuse

its discretion in sentencing Pierre to a 63-month term of imprisonment.

      AFFIRMED.




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