             Case: 13-13476    Date Filed: 02/14/2014   Page: 1 of 11




                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                No. 13-13476
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 9:13-cr-80062-WPD-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

OMAR PITTER,
a.k.a. Jermaine Ayala,

                                                            Defendant-Appellant.

                          ________________________

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

                               (February 14, 2014)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
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      Omar Damian Pitter appeals his 46-month sentence, imposed at the low end

of the advisory guidelines range, after pleading guilty to one count of illegal

reentry of a deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). After

review, we affirm.

                           I. BACKGROUND FACTS

A.    Offense Conduct

      Pitter, a citizen of Jamaica, first entered the United States in 2000, when he

was 18 years’ old. From November 2002 to March 2003, Pitter, under the name

“Troy Williams,” conspired with others to distribute between 5 and 15 kilograms

of cocaine. Pitter drove quantities of cocaine from Florida to Ohio, and at the time

of his arrest, he had over $30,000 in cash on his person and in his suitcase. In

October 2003, Pitter was convicted of conspiracy to distribute cocaine and to

possess with intent to distribute cocaine and sentenced to 96 months’ imprisonment

and 5 years’ supervised release.

      Pitter’s advisory guidelines range for the drug-trafficking offense was 121 to

151 months’ imprisonment. Pitter’s 96-month sentence was a result of a

downward departure under U.S.S.G. § 5K1.1 for his substantial assistance.

      On May 6, 2010, after he served his prison sentence, Pitter was deported to

Jamaica. Sometime thereafter, law enforcement discovered that Pitter had returned

to the United States and was residing in Florida under the name “Jermaine Ayala.”


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In February 2013, Pitter was arrested and charged with illegal reentry of a deported

alien. In May 2013, Pitter pled guilty pursuant to a written plea agreement. In the

plea agreement, the government agreed not to charge Pitter for impersonating a

U.S. citizen, in violation of 18 U.S.C. § 911.

       Also, because Pitter was on supervised release for his 2003 drug-trafficking

offense when he reentered the United States, he was separately charged with

violating the terms of his supervised release. Pitter admitted that he had committed

the violation.

B.     Sentencing

       The presentence investigation report (“PSI”) prepared for Pitter’s illegal

reentry case calculated a total offense level of 21, which included: (1) a base

offense level of 8, pursuant to U.S.S.G. § 2L1.2(a); (2) a 16-level increase,

pursuant to § 2L1.2(b)(1)(A), because Pitter was previously deported following a

drug-trafficking conviction for which his sentence exceeded 13 months; and (3) a

3-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a),

(b).

       Pitter received three criminal-history points for his 2003 drug-trafficking

offense and another two points because he committed the instant offense while on

supervised release for the drug-trafficking offense. His five criminal history points

yielded a criminal history category of III. With an adjusted offense level of 21 and


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a criminal history category of III, the PSI suggested an advisory guidelines range

of 46 to 57 months’ imprisonment. 1

       In a sentencing memorandum, Pitter asked for a 24-month prison sentence

because (1) he previously cooperated with the government in relation to his 2003

drug-trafficking conviction, and (2) he reentered the United States, as his

codefendants had returned to Jamaica and were threatening to harm Pitter and his

mother due to Pitter’s prior cooperation. As further support for his request for a

downward variance, Pitter asserted that his advisory guidelines range substantially

overrepresented his criminal history and the likelihood that he would reoffend

because the PSI used his 2003 drug-trafficking conviction, his only prior criminal

offense, to increase his sentence by 16 levels and to increase his criminal history

category.

       Pitter also noted that the government determined that he was ineligible for

the “fast-track program,” which applies to defendants charged with illegal reentry,

because he had a prior conviction and was on supervised release when he was

arrested for the illegal reentry offense. 2 Pitter contended that the fast-track


       1
         Under § 1326(a) the statutory maximum for illegal reentry of a deported alien is two
years’ imprisonment. However, because of Pitter’s 2003 drug-trafficking conviction, his
statutory maximum became 20 years’ imprisonment under § 1326(b)(2).
       2
       A defendant eligible for the “fast-track program” may receive a downward departure of
not more than four levels under the Sentencing Guidelines. U.S.S.G. § 5K3.1; United States v.
Campos-Diaz, 472 F.3d 1278, 1279 n.1 (11th Cir. 2006). Some districts do not have fast track
programs, as they must be authorized by the U.S. Attorney General and the district’s U.S.
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program created sentencing disparities between similarly-situated defendants

because the U.S. Attorney for each district had discretion as to whether a defendant

was eligible for the program. Finally, Pitter requested that the district court

consider several mitigating factors, including his lack of positive role models, his

exemplary behavior while in prison for his 2003 drug-trafficking offense, and the

fact that he was about to become a father.

       At sentencing, Pitter stated he had no objections to the PSI, and the district

court adopted the PSI’s advisory guidelines range of 46 to 57 months’

imprisonment. Pitter reiterated the arguments in his sentencing memorandum,

adding, inter alia, that (1) he was culturally assimilated into the United States, even

though most of his time in the country was spent in prison, and (2) he cooperated

with law enforcement in the instant case and even provided information about the

person who helped him obtain a fake identity.

       The government asked the district court to deny Pitter’s request for a

downward variance because Pitter had a history of illegally entering and

committing crimes: on both occasions that he entered the United States, he




Attorney. Campos-Diaz, 472 F.3d at 1279 & n.1. The Southern District of Florida has a fast-
track program; however, under that program, the U.S. Attorney for the Southern District of
Florida may deny an individual defendant’s participation if the defendant is “under any form of
court or correctional supervision” or if any “other aggravating factors [are] identified.”

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assumed a false identity, and during his first stay, he was convicted of conspiracy

to distribute cocaine.

      The district court stated it had considered the 18 U.S.C. § 3553(a) factors.

The court found that Pitter did not leave Jamaica to protect his mother, as she was

still living there. The court further found that it was “perfectly fine” to use Pitter’s

prior 2003 drug-trafficking offense to increase both his offense level and his

criminal history category. The court also (1) acknowledged Pitter’s argument

concerning “[t]he disparity in Fast-Track programs,” (2) determined that Pitter had

no “right” to be in the fast-track program, (3) found that the U.S. Attorney for the

Southern District of Florida had not discriminated against Pitter in finding him

ineligible for the fast-track program, and (4) noted that, even if the U.S. Attorney

had found Pitter eligible, the court would still not be required to reduce Pitter’s

sentence based on his eligibility for the fast-track program.

      The district court found insufficient cultural assimilation to warrant a

variance, but determined that it would consider Pitter’s cooperation in the case in

deciding where to sentence within the advisory guidelines range. The court

observed that Pitter had a conviction for a serious drug-trafficking offense,

involving large amounts of cash, and that Pitter’s below-guidelines sentence for

that offense had not deterred him from committing further criminal activity




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because he had illegally returned to the United States and assumed someone else’s

identity.

       The district court determined that a sentence at the low end of the advisory

guidelines range of 46 to 57 months was appropriate and imposed a 46-month

prison sentence. As to the supervised release violation, the district court sentenced

Pitter to a four-month prison sentence to run concurrently with the sentence

imposed in his illegal reentry case. Pitter appealed the 46-month sentence imposed

in the illegal reentry case.3

                                        II. DISCUSSION

A.     Prior Felony Drug Conviction

       As Pitter concedes, the Supreme Court’s decision in Almendarez-Torres

forecloses any argument that the existence of a defendant’s prior felony drug

conviction needed to be admitted in his guilty plea or otherwise proven beyond a

reasonable doubt before that conviction could be used to increase his statutory

maximum sentence and advisory guidelines range, pursuant to 8 U.S.C.

§ 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(A). See Almendarez-Torres v. United

States, 523 U.S. 224, 226-27, 239, 118 S. Ct. 1219, 1222, 1228 (1998) (holding

that a prior conviction used to increase a defendant’s statutory maximum sentence

under § 1326(b)(2) is not an element of the offense and, thus, need not be alleged


       3
           Pitter has not appealed the judgment in his supervised-release revocation case.
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in the indictment or found by a jury beyond a reasonable doubt); United States v.

Palomino Garcia, 606 F.3d 1317, 1337 (11th Cir. 2010) (holding that, under

Almendarez-Torres, a prior conviction used to increase a defendant’s sentence

under § 2L1.2 does not need to be alleged in the indictment or proved beyond a

reasonable doubt and that Almendarez-Torres “‘remains the law until the Supreme

Court overrules it’”).

B.     Reasonableness

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

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). We first determine whether the district court committed any significant

procedural error4 and then examine whether the sentence is substantively

unreasonable under the totality of the circumstances. United States v. Pugh, 515

F.3d 1179, 1190 (11th Cir. 2008). The abuse of discretion standard “allows a

range of choice for the district court, so long as that choice does not constitute a

clear error of judgment.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.

2010) (en banc) (internal quotation marks omitted). We ordinarily expect a

sentence within the advisory guidelines range to be reasonable. United States v.


       4
         A district court can commit procedural error by “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008)
(internal quotation marks omitted).


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Talley, 431 F.3d 784, 788 (11th Cir. 2005). The party challenging the sentence

bears the burden of proving the sentence is unreasonable in light of the record and

the § 3553(a) factors. Id. 5

       Pitter’s only procedural argument is that the district court misinterpreted his

argument “that the government’s uneven application of [the fast-track] program

created unwarranted sentencing disparities that the court should take into account

in fashioning a reasonable sentence under § 3553(a).”

       After reviewing the sentencing transcript, we conclude that the district court

did not misconstrue Pitter’s sentencing-disparity argument and properly declined to

consider the disparities created by the fast-track program in weighing the § 3553(a)

factors. Congress contemplated that the fast-track program would create

disparities between defendants because “a defendant may benefit from its

application only on motion of the government, and only if the Attorney General

has authorized the [fast-track program] in that district.” United States v. Arevalo-

Juarez, 464 F.3d 1246, 1251 (11th Cir. 2006). Thus, this Court has held that

sentence disparities based on the uneven application of the fast-track program are

       5
         The § 3553(a) factors 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
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines 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. 18 U.S.C. § 3553(a).

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not “unwarranted sentencing disparities for the purposes of § 3553(a)(6)” and that

it is impermissible for a district court to consider such disparities. Id. (internal

quotation marks omitted). Accordingly, had the district court actually considered

the disparities created by the fast-track program, as Pitter urged, the district court

would have abused its discretion by considering an impermissible factor. See id.

      We also conclude that Pitter’s 46-month prison sentence was substantively

reasonable. His 46-month sentence is at the bottom of his advisory guidelines

range of 46 to 57 months, and we ordinarily expect a guidelines sentence to be

reasonable. See Talley, 431 F.3d at 788. In addition, his 46-month sentence was

well below the statutory maximum penalty of 20 years’ imprisonment, which is a

“further indicator the sentence was reasonable.” United States v. McKinley, 732

F.3d 1291, 1299 (11th Cir. 2013).

      In choosing where to sentence Pitter within the advisory guidelines range,

the district court considered Pitter’s cooperation with the government as a

mitigating factor. It also acknowledged Pitter’s arguments in support of a variance

from his advisory guidelines range. Despite Pitter’s arguments, the district court

was entitled to conclude that a downward variance from the advisory guidelines

range was not warranted, in light of (1) the severity of Pitter’s prior felony drug




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conviction, involving Pitter’s use of an alias and large amounts of cocaine and

cash, and (2) his use of a false identity after illegally reentering the country. 6

       Further, in sentencing Pitter, the district court was entitled to place weight

on the need to deter Pitter from committing future criminal activity, as Pitter’s

prior below-guidelines sentence for his 2003 drug-trafficking had not deterred him

from illegally reentering the United States and assuming a false identity. Under

the totality of the circumstances, we cannot say that Pitter’s 46-month prison

sentence was an abuse of discretion.

       For all the foregoing reasons, we affirm Pitter’s sentence.

       AFFIRMED.




       6
         We note that our prior precedent forecloses any argument by Pitter that the district court
engaged in improper “double counting” by using his prior drug-trafficking conviction to increase
his base offense level by 16, pursuant to § 2L1.2(b)(1)(A), and to increase his criminal history
category. See United States v. Adeleke, 968 F.2d 1159, 1160-61 (11th Cir. 1992) (rejecting the
defendant’s argument that a district court engaged in improper “double counting” when it uses a
defendant’s prior convictions to increase his criminal history category and offense level).
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