         Case: 15-14720   Date Filed: 12/16/2016   Page: 1 of 15


                                                       [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 15-14720
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 4:08-cr-10070-KMM-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

JUAN GUTIERREZ,

                                                       Defendant-Appellant.


                     ________________________

                           No. 15-14791
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 4:08-cr-10068-KMM-2



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus
           Case: 15-14720   Date Filed: 12/16/2016   Page: 2 of 15




JUAN GUTIERREZ,

                                              Defendant -Appellant.


                       ________________________

                             No. 15-15533
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:07-cr-10049-KMM-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                  versus

JUAN ANTONIO GUTIERREZ ARENCEBIA,
a.k.a. Juan Antonio Arencebia,

                                                         Defendant-Appellant.

                       ________________________

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

                            (December 16, 2016)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:




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      In this consolidated appeal, Defendant Juan Gutierrez Arencebia appeals his

total 72-month sentence, imposed upon revocation of supervised release in three

separate cases. This is the second time Defendant asks us to review his sentence.

The first time this appeal was before us, we vacated Defendant’s 72-month

sentence, concluding that the district court had committed procedural error in

sentencing Defendant by considering conduct involving alien smuggling that had

not been proved by a preponderance of the evidence.

      On remand, the district court once again sentenced Defendant to 72 months’

imprisonment. Defendant now appeals, arguing that his sentence is procedurally

and substantively unreasonable. After careful review, we affirm.

I.    BACKGROUND

      Defendant, a Cuban national, is a repeat violator of federal immigration

laws. In our previous decision, we provided a detailed description of the multiple

human-smuggling attempts, arrests, deportation orders, and prosecutions that lay

the foundation for this appeal. See United States v. Arencebia, 613 Fed. App’x

882, 883–888 (11th Cir. 2015) (unpublished). We therefore provide only a brief

synopsis of the facts and procedural history necessary for resolution of the present

appeal.




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      A.     Defendant’s Underlying Convictions

      In June 2008, Defendant was sentenced to 24 months’ imprisonment

followed by three years of supervised release after pleading guilty to conspiracy to

induce aliens to enter the United States, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(I), and illegal reentry, in violation of 8 U.S.C. § 1326(a).

Later, in February 2009, Defendant pleaded guilty in two separate cases to

conspiracy to induce aliens to enter the United States. In one of the cases, he was

sentenced to 18 months’ imprisonment to run consecutively to his 24-month

sentence imposed in June 2008. As to the other case, he was sentenced to 30

months’ imprisonment to run concurrently with his other sentences. He received

three years of probation in each case.

      B.     Supervised Release Violation and First Revocation Hearing

      Defendant began his term of supervised release in all three cases in August

2011. Approximately two years later and before the terms of supervised release

expired, the probation officer filed separate, but identical, petitions seeking

revocation of Defendant’s supervised release in each of the three cases. According

to the petitions, Defendant was arrested on October 23, 2013, for committing the

offenses of alien smuggling and illegal reentry. Defendant had thus violated

mandatory conditions of his supervised release by: (1) committing two new

criminal offenses; and (2) leaving the judicial district without seeking permission


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from the probation officer. Defendant admitted to leaving the judicial district

without permission, but denied committing the offenses of alien smuggling and

illegal reentry. Given Defendant’s admission, the Government dismissed the

violations related to alien smuggling and illegal reentry.

      In anticipation of the revocation hearing, the probation officer prepared three

nearly identical written reports and recommendations. The probation officer

indicated that Defendant’s underlying convictions for conspiracy to induce aliens

to enter the United States were Class C felonies, and therefore the maximum term

of imprisonment that could be imposed was 24 months’ imprisonment for each

violation. See 18 U.S.C. § 3583(e)(3). Because Defendant’s supervised release

violation was a Grade C violation and Defendant’s criminal history category was I,

Defendant’s guideline range for the first case was three to nine months’

imprisonment. For the second case, Defendant’s guideline range was four to ten

months’ imprisonment. For the third case, Defendant’s criminal history category

was III, which resulted in a guideline range of 5 to 11 months’ imprisonment.

      At the revocation hearing, Defendant admitted that he left the judicial

district on October 23, 2013, and had traveled to international waters without

permission from his probation officer. He also admitted that he was subsequently

arrested for alien smuggling and illegal reentry. Based on his admitted departure

from the judicial district without permission, the district court adjudicated him


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guilty of violating the terms of his supervised release in all three cases. The

district court reiterated the probation officer’s guidelines calculations in each of the

three cases. Concluding that Defendant had shown “utter contempt and disrespect

for the laws of the United States” and “appears to be unable or unwilling to

conform his behavior to the requirements of the law . . . that this kind of smuggling

activity is prohibited,” the district court sentenced Defendant to a total of 72

months’ imprisonment, consisting of 24 months’ imprisonment in each case, to run

consecutively to one another.

      C.     First Appeal

      On appeal, we concluded that the district court committed procedural error

by relying on Defendant’s conduct involving alien smuggling, which had not been

sufficiently proven by a preponderance of the evidence. Arencebia, 613 Fed.

App’x at 891–92. We explained that to the extent the district court relied on an

affidavit that described Defendant’s arrest for alien smuggling, the district court

had not provided Defendant an opportunity to contest the reliability of that

evidence. Id. at 892. Accordingly, we vacated Defendant’s sentence and

remanded for a new sentencing hearing. Id. We stated that on remand, “the

district court shall allow Defendant the opportunity to contest any information that




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the court is considering as a sentencing factor and at which the court shall consider

only such conduct as is proved by a preponderance of reliable evidence.” 1 Id.

       D.     Resentencing Hearing for Violations of Supervised Release

       At the outset of the resentencing hearing, the parties agreed that the

guidelines calculations remained unchanged. To meet its burden of establishing

that Defendant’s October 2013 arrest involved alien smuggling, the Government

called Lieutenant Morgan Roy, a pilot with the U.S. Coast Guard, to testify.

Lieutenant Roy stated that while on duty on October 23, 2013, she was directed to

relieve an aircraft that was overhead a vessel in the body of water between the

Florida Keys and Cuba. When she arrived on scene, she observed that the vessel

was overloaded with people. The vessel appeared to be having engine trouble and

eventually stopped at an abandoned island within the territory of the Bahamas,

where all but two people got off of the boat. The vessel then headed north,

eventually stopped, and the two remaining people on board took out fishing gear.

       The Government also called Pablo Milian, a special agent with the

Department of Homeland Security. Agent Milian interviewed Defendant

following his arrest in October 2013, after the Coast Guard interdicted his vessel


1
  In the meantime, while Defendant’s first appeal was pending in our Court, a jury convicted
him of attempted illegal reentry, in violation of § 1326(a), for the conduct stemming from his
October 2013 arrest. Id. at 888. Defendant was sentenced to 92 months’ imprisonment to be
served consecutively to the sentences imposed for the violations of supervised release. Id. We
later affirmed Defendant’s conviction and sentence. United States v. Gutierrez, 626 Fed. App’x
923, 926 (11th Cir. 2015) (unpublished).
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off of the Florida Keys. At first, Defendant told Agent Milian that he had

borrowed a boat from a friend for a fishing trip, but they encountered engine

trouble and headed back to the United States. When Agent Milian showed

Defendant a photograph of Defendant’s vessel filled with people on it, Defendant

changed his story. Defendant told Agent Milian that he encountered a stranded

boat and he had picked up those passengers and dropped them off on an island.

      Agent Milian further testified that this was not the first time he had

interviewed Defendant, as he had first encountered Defendant in 2005 under

similar circumstances. In 2005, the Coast Guard interdicted a vessel that

Defendant was the master of, and which contained a large number of

undocumented Cuban nationals. When Agent Milian interviewed Defendant at

that time, Defendant told him the same story—he was fishing off of the Florida

Keys when he discovered a group of stranded people and took them on board his

vessel. Agent Milian testified that the investigation in 2005 resulted in one of the

alien-smuggling convictions underlying the current supervised release revocation

proceeding.

      The district court confirmed with Defendant that the problem with the prior

sentencing hearing—the use of unreliable evidence to support the determination

that Defendant had engaged in alien smuggling—was no longer an issue given the

evidence presented by the Government during the resentencing hearing.


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Nevertheless, Defendant maintained that the evidence was not sufficient to

demonstrate that he had engaged in alien smuggling. Based on the testimony of

the two witnesses, the district court determined that the Government had

demonstrated by a preponderance of the evidence that Defendant attempted illegal

reentry and attempted to commit alien smuggling.

      Defendant argued that a sentence significantly lower than the 72-month

sentence imposed at the prior sentencing hearing was appropriate, especially given

the applicable guideline range and the 92-month sentence Defendant received for

his most recent attempted illegal reentry conviction. The district court stated that

Defendant “shows utter disrespect for the law, and the only thing that’s going to

stop him from continuing to engage in alien-smuggling activity and the danger and

the risk to the lives of other people is incarceration.” After considering the parties’

arguments, the district court revoked Defendant’s supervised release and sentenced

him to 24 months’ imprisonment in each of the three cases to run consecutively,

resulting in a total sentence of 72 months’ imprisonment. This appeal followed.

II.   DISCUSSION

      Using a two-step process, we review the reasonableness of a district court’s

sentence for an abuse of discretion. United States v. Cubero, 754 F.3d 888, 892

(11th Cir. 2014). We first look to whether the district court committed any

significant procedural error, such as miscalculating the advisory guideline range,


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treating the Sentencing Guidelines as mandatory, failing to consider the 18 U.S.C.

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence. Id. Then we examine whether the

sentence is substantively reasonable in light of the totality of the circumstances.

Id. The party challenging the sentence bears the burden of showing that it is

unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008).

      When revoking a defendant’s term of supervised release, 18 U.S.C.

§ 3583(e) instructs courts to consider certain 18 U.S.C. § 3553(a) factors in

determining an appropriate sentence. See 18 U.S.C. § 3583(e)(3). In part,

sentencing courts must consider (1) “the nature and circumstances of the offense

and the history and characteristics of the defendant,” (2) the need to adequately

deter criminal conduct, (3) the need “to protect the public from further crimes of

the defendant,” (4) the applicable sentencing range, and (5) any pertinent policy

statements of the Sentencing Commission. See 18 U.S.C. § 3583(e), 3553(a)(1),

(a)(2)(B)-(C), (a)(4)-(5).

      A.     Procedural Reasonableness

      Defendant argues that the district court committed procedural error by

basing his sentence on the alien-smuggling conduct, rather than on his actual

supervised release violation of leaving the judicial district without permission.




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      Under federal law, “[n]o limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. The Guidelines

also note that the information a court may consider in formulating a sentence is

expansive and includes evidence that would not be admissible at trial, so long as

the information has a “sufficient indicia of reliability” to support its accuracy.

U.S.S.G. § 6A1.3(a). In other words, the relevant facts at sentencing must be

established by a preponderance of the evidence. See United States v. Watts, 519

U.S. 148, 156 (1997).

      Here, Defendant’s sentence is not procedurally unreasonable because the

district court was permitted to consider Defendant’s alien-smuggling conduct. In

determining the proper sentence to impose upon revocation of supervised release,

the district court is not limited solely to the information about the admitted

violation. See 18 U.S.C. § 3661. Instead, the information the court can consider is

vast, so long as it is supported by a preponderance of the evidence. See Watts, 519

U.S. at 156. After hearing testimony from two Government witnesses, the district

court concluded that the Government established by a preponderance of the

evidence that Defendant engaged in alien smuggling. Moreover, Defendant has

abandoned any argument that this determination was not supported by a


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preponderance of the evidence, as he does not raise that argument on appeal. See

United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (explaining

that issues not raised on appeal are deemed abandoned). But even if Defendant

had not abandoned this argument, any such argument would have been meritless,

as the testimony of Lieutenant Roy and Agent Milian was sufficient to show by a

preponderance of the evidence that Defendant engaged in alien smuggling. See

Watts, 519 U.S. at 156.

      Furthermore, we are not persuaded by Defendant’s argument that the district

court could not consider his alien-smuggling conduct, as we indicated in

Defendant’s first appeal that the district court could consider the alien-smuggling

conduct in fashioning his sentence, so long as that conduct was established by a

preponderance of the evidence. See Arencebia, 613 Fed. App’x at 891–92. At the

resentencing hearing, the district court provided Defendant the opportunity to

cross-examine the Government’s witnesses, heard argument from Defendant, and

then found the alien-smuggling conduct was proved by a preponderance of the

evidence. Thus, our previous concerns regarding the procedural reasonableness of

Defendant’s sentence are no longer at issue.




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      B.     Substantive Reasonableness

      Defendant next argues that his sentence is substantively unreasonable

because the district court varied upward to the statutory maximum sentence based

on Defendant’s conduct involving alien smuggling.

      We disagree. Although Defendant’s 24-month sentences reflect upward

variances from the respective guideline ranges for each supervised release

violation, his sentences to the statutory maximum, were not “outside the range of

reasonable sentences dictated by the facts of the case.” See United States v. Irey,

612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).

      Indeed, in determining that an upward variance was necessary as to each

violation, the district court considered several of the relevant sentencing factors,

including Defendant’s history and characteristics, the nature and circumstances of

the offense, and the need for deterrence. See 18 U.S.C. §§ 3583(e), 3553(a)(1),

(a)(2)(B)-(C), (a)(4)-(5); see also Irey, 612 F.3d at 1186–87 (explaining that when

a district court imposes a sentence outside of the applicable guideline range, the

justification must be “‘sufficiently compelling to support the degree of the

variance’”). In particular, Defendant had three prior convictions for alien

smuggling during the approximately ten years he had been in the United States.

Further, the testimony presented at sentencing was sufficient to establish by a

preponderance of the evidence that Defendant was again attempting to smuggle


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aliens when he was caught outside the judicial district in October 2013. These

repeated instances of alien smuggling, including the 2013 instance that occurred

after Defendant had already served terms of imprisonment for three prior alien-

smuggling convictions, suggest that a lengthier sentence was needed to adequately

deter Defendant. See 18 U.S.C. § 3553(a)(2)(B). In addition, Defendant exhibited

a callous disregard for human life, abandoning the aliens he had smuggled on an

uninhabitable island, with limited food and water.

      Although Defendant argues that the district court relied too heavily on the

alien-smuggling conduct surrounding his supervised release violation, instead of

focusing on the actual admitted violation of leaving the judicial district without

permission, it was entirely within the district court’s discretion to do so. See

United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court. . . .” (quotations omitted)). And to the extent Defendant still

maintains that the district court was not permitted to consider the alien-smuggling

conduct, we have already explained that the district court was permitted to consider

any information relevant to sentencing, so long as it was proved by a

preponderance of the evidence. See 18 U.S.C. § 3661; Watts, 519 U.S. at 156.

      Finally, Defendant relies on U.S.S.G. § 5G1.2—the provision governing

sentencing on multiple counts of conviction—to argue that his consecutive


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sentences are unreasonable. This argument is without merit, as sentences imposed

upon revocation of supervised release are governed by Chapter 7 of the Sentencing

Guidelines, not § 5G1.2. See U.S.S.G. § 5G1.2; U.S.S.G. Chap. 7; See United

States v. Quinones, 136 F.3d 1293, 1295 (11th Cir. 1998) (concluding that § 5G1.2

did not limit the district court’s authority to impose consecutive terms of

imprisonment upon revocation of supervised release, as the policy statements in

Chapter 7 governed revocation sentences).

      Accordingly, Defendant has not shown that the district court abused its

discretion by imposing a total sentence of 72 months’ imprisonment.

      AFFIRMED.




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