            Case: 18-10135    Date Filed: 10/18/2018   Page: 1 of 4


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 18-10135
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:17-cr-20561-FAM-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

EDUARDO FRANCIS MAZ,

                                                           Defendant-Appellant.

                         ________________________

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

                              (October 18, 2018)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and ANDERSON, Circuit
Judges.

PER CURIAM:

     Eduardo Maz, a federal prisoner, pleaded guilty to misusing a passport in
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violation of 18 U.S.C. § 1544. At sentencing, the government requested an upward

variance from Maz’s advisory guidelines range of 6 to 12 months. The

government argued that Maz’s guidelines range did not account for the fact that he

used the passport to avoid charges in Virginia for rape of a child under the age of

13, having sexual intercourse with the intent to transfer HIV, and inanimate object

penetration of a child under the age of 13. Maz responded that the Virginia

charges had been nolle prossed before he left the country, that there was no logical

nexus between the charges and misuse of the passport, and that Maz actually left

the country because he no longer had health insurance and needed affordable

access to his HIV medications. The government acknowledged that the Virginia

charges had been nolle prossed, but asserted that the Virginia Attorney’s Office

had told Maz’s attorney that the office intended to bring the charges again in the

near future and that Maz left the country to avoid that future prosecution. Maz

challenged the factual basis for that assertion, arguing that “there’s not a scintilla

of evidence in this record” to show that he had known that the government

intended to refile the charges.

      The district court granted the variance and sentenced Maz to 84 months in

prison — seven times the top of his advisory guidelines range — followed by 3

years of supervised release. The court found that a “substantial upward variance”

was appropriate in part because Maz used the passport “to avoid the very serious

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[Virginia] charges.” This is Maz’s appeal. He contends that his sentence is

procedurally and substantively unreasonable.

      We review the reasonableness of a sentence for an abuse of discretion. Gall

v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). And we consider the

procedural reasonableness of a sentence before turning to its substantive

reasonableness. Id. A sentence is procedurally unreasonable if it is based on

clearly erroneous facts. Id. Although review for clear error is deferential, a

finding of fact must be supported by substantial evidence. United States v.

Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007). The district court may consider

relevant information, even if it would not have been admissible at trial, so long as

the information has sufficient indicia of reliability to support its probable accuracy.

United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010).

      Maz argues that his sentence is procedurally unreasonable because the court

based the upward variance on a finding that Maz used the passport to avoid

prosecution for the Virginia charges and that finding was not supported by

substantial evidence. The government admits that it put forth no evidence to

support counsel’s assertion that Maz used the passport to avoid the Virginia

charges, and for that reason, it concedes that the court’s finding was clearly

erroneous. See Robertson, 493 F.3d at 1330. Because the court based the

substantial upward variance on a challenged finding for which there was no

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supporting evidence, Maz’s sentence is procedurally unreasonable. We need not

consider whether it is also substantively unreasonable. See Gall, 552 U.S. at 51,

128 S. Ct. at 597.

      VACATED AND REMANDED.




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