               Case: 14-14447       Date Filed: 03/01/2016      Page: 1 of 12


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-14447
                              ________________________

                        D.C. Docket No. 1:14-cr-20404-KMM-1



UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                            versus

RICARDO LENIN OSORIO-MORENO,

                                                                      Defendant-Appellant.

                              ________________________

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

                                      (March 1, 2016)

Before WILLIAM PRYOR and DUBINA, Circuit Judges, and ROBRENO, *
District Judge.

WILLIAM PRYOR, Circuit Judge:



*
 Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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      This appeal requires us to decide whether a sentence above the guideline

range for an offender with 20 prior convictions—ranging from drug trafficking to

offenses related to firearms and prostitution to violent crimes against women and

police officers—is substantively reasonable. Ricardo Osorio-Moreno pleaded

guilty to illegal reentry after deportation, 8 U.S.C. § 1326(b)(1). His final offense

level, after a 3-level reduction for acceptance of responsibility, was 17, and his

criminal history category was VI, which produced a guideline range of 51 to 63

months of imprisonment. The district court determined that a sentence within the

guideline range would not adequately reflect Osorio’s criminal history and would

not provide adequate deterrence or promote sufficient respect for the law. The

district court sentenced Osorio to 120 months of imprisonment and three years of

supervised release—the statutory maximum. Because this sentence is substantively

reasonable, we affirm.

                                I. BACKGROUND

      Osorio, a citizen of Nicaragua, pleaded guilty to illegally reentering the

United States after deportation, id. § 1326(b)(1). At sentencing, the district court

recounted Osorio’s life of crime from the presentence investigation report.

Osorio’s run-ins with the law began at age 15. As a juvenile, he was arrested for

“grand theft, burglary, criminal mischief, strong armed robbery, resisting an officer




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without violence, another strong armed robbery . . ., cannabis possession, another

strong armed robbery . . . [and] open alcohol container in the vehicle.”

      Osorio’s adult convictions began at age 18, when he was charged with

disorderly intoxication and unlawful assembly. He received no criminal-history

points because adjudication was withheld. At 19, he was convicted of purchasing

and possessing cocaine and cannabis. He received two days, with credit for time

served, and one point. At 20, he was convicted of unlawful sale and delivery of

cannabis, possessing cocaine, possessing cannabis, and resisting an officer without

violence. He received 33 days in jail and one point.

      Osorio was then deported, but he returned illegally and began committing

violent crimes. At 23, he was convicted of strong-arm robbery, aggravated assault

on a police officer, and resisting an officer with violence. He received 24 months

of imprisonment and four points for those convictions. “[T]he victim was walking

down the street when the defendant approached her and said, Ma’am, do not move.

I do not want to hurt you. Give me your chain.” When officers came to arrest

Osorio for robbing the woman, he assaulted them. The district court read the

disturbing narrative of the aggravated assault:

      [A] police officer was conducting a robbery investigation and the
      defendant exited a residence and started yelling profanities. The
      officer told him to calm down and not interfere with his duties. The
      defendant walked back into the residence and came out with a blunt
      object in his hand. He told the officer, Get the fuck out of my
      property. If not, I’m going to start hitting you until you die. He then
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         ran back into the residence. Hours later, the defendant was removed
         from the residence by a special weapons and tactics team and arrested.

         Osorio continued to amass convictions for serious offenses throughout his

twenties. At 25, Osorio was convicted of carrying a concealed weapon. He was

fined and received one point. At 26, he was convicted of cocaine possession. He

received 30 days in jail and one point. At 27, he was convicted of resisting and

obstructing a police officer. He received one day in jail, with credit for time served,

and no points. At 29, he was convicted of cocaine possession and resisting an

officer without violence. He received 21 days, with credit for time served, and one

point.

         Osorio’s life of crime continued in his thirties. At 30, he was charged with

directing another to prostitution. Adjudication was withheld, and he was given six

months in the advocate program. He received no points. Osorio “asked an

undercover police officer if he wanted a date with the codefendant” and “told the

undercover officer that the charge was $20 for a blow job plus his $5.” At 31,

Osorio was convicted of tampering with physical evidence. He received 75 days in

jail and two points. At age 32, he was convicted of disorderly intoxication. He was

fined and received no points. Also at age 32, he was convicted of criminal mischief

and assault. He received 42 days, with credit for time served, a suspended

sentence, and one point. In that incident, Osorio’s sister called the police after an

argument about a car. Osorio told her, “I’m going to kill you if you do not give me

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the car.” She “refused and [Osorio] smashed the car window with a baseball bat

and slashed a tire.” Also at age 32, he was convicted of fleeing and eluding a

police officer. He received 120 days in jail and two points. At 33, he was convicted

of disorderly intoxication. He received one day in jail, with credit for time served,

and no points. A few months later he was convicted of battery for grabbing a

woman by the neck. He received two days in jail, with credit for time served, and

one point. Also at age 33, he was arrested for possession of cannabis. Adjudication

was withheld and he received one point. Later that year he was convicted of battery

on a law enforcement officer and resisting an officer with violence. He received

two years of probation, which was modified to 180 days in jail, and two points.

While handcuffed in the back of a police car, Osorio “began to kick the rear

window of the patrol car. When the officer stopped and opened the door, the

defendant kicked him twice and attempted to flee. As backup officers arrived,

[Osorio] was restrained” Osorio told the officers, “As soon as you take the cuffs

off, I’m going to take your gun and shoot you.” At 35, he was convicted of

littering. He was fined and received no points. Also at 35, he was convicted of

giving a false name and identification after arrest and corruption by a threat against

a public servant. He received 90 days in jail and two points. The district court

found the arrest affidavit especially troubling:

      [T]he defendant was stopped for running a red light and driving with
      an expired tag. When confronted by a police officer, the defendant
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      gave a false date of birth and name in order for the officer not to find
      out he was on probation. Furthermore, while in the back of the patrol
      car, the defendant stated, quote, If you don’t let me out of the car,
      when I bond out, I am going to kill you and your bitch ass nigger
      wife. He further stated that he was a gang banger and he had many
      guns, and when he bonded out he was coming after the officer and his
      family.

      The district court also reviewed Osorio’s history of arrests for other adult

criminal conduct that the state chose not to prosecute. These arrests included

charges of “obstruction of a police officer, robbery[/]carjacking, criminal mischief,

strong armed robbery at age 28, cocaine possession at 30, burglary of an

unoccupied conveyance, [and] possession of burglary tools.” The district court

stated that Osorio’s arrest for aggravated assault with a deadly weapon was

especially heinous. In that incident, Osorio’s aunt “told police the defendant took

her vehicle and returned intoxicated. They had a verbal altercation until the

defendant grabbed a kitchen knife and stated, quote, I am going to kill you, bitch.”

Osorio was also arrested for carrying a concealed weapon, illegally possessing a

weapon, and battery. And Osorio had a pending charge for improper exhibition of

a firearm. The victim “told police that when she left her house, she closed her

bedroom door. Upon returning, the bedroom door was open and $400 was missing.

When she questioned [Osorio], he pulled out a handgun and stated, I am not giving

you shit. You better leave.” When the police arrived, Osorio said, “You guys are

here too late. You won’t find the gun.”


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      Osorio had a base offense level of 8, United States Sentencing Guidelines

Manual § 2L1.2(a) (Nov. 2013), and a 12-level enhancement for a felony drug-

trafficking offense, id. § 2L1.2(b)(1)(B). He received a 2-level reduction for

acceptance of responsibility, id. § 3E1.1(a), and an additional 1-level reduction on

the government’s motion, id. § 3E1.1(b). He had 16 criminal-history points,

placing him in criminal-history category VI. His guideline range was 51–63

months of imprisonment.

      Osorio asked for a downward departure. First, he argued that the conviction

that gave rise to the 12-level enhancement should not count towards his criminal

history category, but the district court responded that Osorio would still be criminal

history category VI without that offense. Osorio also asked for a downward

variance because he believed the guideline range overstated his culpability. He

argued that his arrests “are the product of a person who for years has been a

chronic abuser and addict of alcohol and drugs, particularly crack cocaine. . . . He

got hooked on drugs because, from an age as young as 12, his step-father would

send him out to purchase and retrieve drugs for him.” Osorio also alleged that he

witnessed his stepfather murder a man. Osorio added that he cooperated with the

prosecutors and “gave them truthful information about drug trafficking activity . . .

and the presence of a person who is illegally in the United States.” The government

argued that although he later cooperated, Osorio “at first claimed to be a United

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States citizen, claiming he was born in the United States, and it was up to ICE

agents to contact the defendant’s mother to confirm that he wasn’t a United States

citizen and wasn’t born in the United States.”

      The district court sentenced Osorio to the statutory maximum of 120 months

of imprisonment and three years of supervised release. The district court

determined that this sentence was appropriate under the statutory sentencing

factors, see 18 U.S.C. § 3553(a), because “the guideline sentence does not

accurately or adequately reflect the defendant’s history and underrepresents the

seriousness of his criminal history.” In addition, the district court determined that

“the guideline sentence does not reflect adequately the need to promote respect for

law given the defendant’s numerous criminal violations, his disrespect for law

enforcement, [and] his use of violence towards women and towards law

enforcement.” And it determined that “the guideline sentence does not provide

adequate assurance that it would deter this defendant or others from engaging in

similar behavior upon release from incarceration.”

                           II. STANDARD OF REVIEW

      We review the substantive reasonableness of a sentence for an abuse of

discretion. United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010) (en banc).

“A district court abuses its discretion when it (1) fails to afford consideration to

relevant factors that were due significant weight, (2) gives significant weight to an


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improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” Id. at 1189 (quoting United States v. Campa, 459

F.3d 1121, 1174 (11th Cir. 2006) (en banc)). Under our deferential standard of

review, “we are to vacate the sentence if, but only if, we ‘are 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.’” Id. at 1190 (quoting

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).

                                 III. DISCUSSION

      Osorio argues that his sentence is substantively unreasonable for two

reasons. First, he argues that the upward variance from his guideline range was not

supported by extraordinary circumstances. Second, he argues that the district court

gave too much weight to his criminal history and not enough weight to his troubled

upbringing. We address both arguments in turn.

      Osorio argues that his sentence is unreasonable because the variance from

the guideline range was not supported by extraordinary circumstances, but the

Supreme Court has rejected “an appellate rule that requires ‘extraordinary’

circumstances to justify a sentence outside the Guidelines range.” Gall v. United

States, 552 U.S. 38, 47 (2007). That approach “come[s] too close to creating an

impermissible presumption of unreasonableness for sentences outside the


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Guidelines range.” Id.; see also Irey, 612 F.3d at 1186. The sentencing court

instead “must give ‘serious consideration’ to the extent of any departure from the

guidelines, and must offer ‘sufficient justifications’ for its conclusion that an

unusually harsh or light sentence is appropriate.” Irey, 612 F.3d at 1186 (quoting

Gall, 552 U.S. at 46).

      Osorio argues that the district court gave too much aggravating weight to his

criminal history and not enough mitigating weight to his troubled youth. Osorio

argues that he is a drug addict and petty criminal. He contends that his problems

with drugs began at age 12 when his stepfather sent him to buy drugs and

worsened after he witnessed his stepfather kill a man. He promises to remain in

Nicaragua indefinitely following deportation.

      The district court did not abuse its discretion in weighing Osorio’s

substantial criminal history more heavily than the advisory guideline range or his

addiction and past traumas. See United States v. Rosales-Bruno, 789 F.3d 1249,

1262–63 (11th Cir. 2015). The district court also reasonably discounted Osorio’s

promise to remain in Nicaragua. After all, Osorio illegally reentered the United

States and was convicted of 17 more crimes following his first deportation. And

the district court reasonably concluded that Osorio’s guideline range understated

his criminal history. Six of Osorio’s 20 convictions did not result in any criminal-

history points, four of his points were not counted, see U.S.S.G. § 4A1.1(c), and he

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was still well above the 13-point threshold for criminal-history category VI, the

highest category. Osorio also had 15 instances of criminal conduct that were not

counted, including arrests for grand theft of a vehicle, burglary, aggravated assault

with a deadly weapon, and robbery.

      We have upheld large upward deviations based solely on an offender’s

extensive criminal history. In United States v. Shaw, 560 F.3d 1230 (11th Cir.

2009), we upheld a statutory-maximum sentence of 120 months despite a guideline

range of 30–37 months. Shaw had 26 prior arrests and we upheld his above-

guideline sentence based solely on his “unwavering desire to commit crimes.” Id.

at 1241. And in United States v. Sanchez, 586 F.3d 918 (11th Cir. 2009), we held

that “the district court did not abuse its discretion when it determined that

Sanchez’s criminal history was sufficiently compelling to justify not only an

upward departure that increased the guidelines range, but also an upward variance

above that guidelines range.” Id. at 936.

      The district court reasonably concluded that Osorio’s sentence was

necessary to achieve the goals of sentencing, see 18 U.S.C. § 3553(a). Osorio has

engaged in a life of crime, with a staggering 20 convictions, and the district court

reasonably concluded that Osorio’s guideline range understated his criminal

history. Osorio’s repeated acts of violence against women and law-enforcement

officers and his return trips to jail also support the conclusion that a lengthy

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sentence was necessary to promote deterrence and respect for the law. In the light

of Osorio’s extensive criminal history, his sentence is substantively reasonable.

                               IV. CONCLUSION

      We AFFIRM Osorio’s sentence.




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