            Case: 20-10045   Date Filed: 06/29/2020   Page: 1 of 9



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 20-10045
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:16-cr-00073-JDW-JSS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

JUAN BARAJAS-PALOMAR,
a.k.a. MANUEL MARTINEZ-SANCHEZ
a.k.a. JUAN BARAJAS,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 29, 2020)

Before GRANT, LUCK and FAY, Circuit Judges.

PER CURIAM:
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      Juan Barajas-Palomar appeals his 18-month sentence, which was imposed

after the district court revoked his supervised release. We affirm.

                                 I. BACKGROUND

A. Underlying Conviction & Sentence

       In February 2016, a grand jury indicted Barajas-Palomar, a native and

citizen of Mexico, in relevant part, for reentering the United States, without

permission, after previously having been convicted of possessing cocaine, in

violation of 8 U.S.C. § 1326(a), (b)(1) (Count One). Barajas-Palomar pled guilty.

      According to the presentence investigation report (“PSI”), Barajas-Palomar

first was deported from the United States in December 1992, subsequently tried to

reenter the United States, and again was deported five other times; additionally, in

2011 and 2013, he was convicted of illegal entry. Accordingly, the PSI determined

that, based on a total offense level of 10 and a criminal history category of III, the

guideline range was 10 to 15 months of imprisonment, with up to 3 years of

supervised release.

      The district court adopted the PSI’s calculations; however, finding that

Barajas-Palomar’s history of recidivism was “shocking,” the court concluded that

an above-guideline sentence was warranted to deter him, promote respect for the

law, and protect the public. The court varied upward and sentenced Barajas-

Palomar to 36 months of imprisonment, to be followed by 3 years of supervised


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release. The conditions of his supervised release included not committing any

other federal, state, or local crime, and the special condition of not reentering the

United States without permission if he was deported. Barajas-Palomar was

deported in October 2018.

B. Revocation of Supervised Release

      In November 2019, the probation office filed a superseding petition asking

the district court to issue a warrant for Barajas-Palomar’s arrest for violating the

terms of his supervised release. Specifically, the petition alleged two violations:

(1) new criminal conduct, namely, a conviction in the Southern District of Texas

for illegal reentry as a deported alien; and (2) illegally reentering the United States

without express permission, in violation of the special conditions of his

supervision. The probation office determined that the guideline range for a

sentence imposed after revocation of supervised release was 8 to 14 months of

imprisonment, pursuant to U.S.S.G. § 7B1.4(a).

      At the final revocation hearing, Barajas-Palomar admitted to both violations.

The district court accepted his admission, found that he had violated the terms of

his supervised release, and revoked his supervised release. After hearing

mitigation arguments from Barajas-Palomar and the government’s arguments, the

court stated that, when considering the 18 U.S.C. § 3553(a) factors, it had “long

since passed the point of trying to deter [Barajas-Palomar],” who had “no respect


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for the United States laws as evidenced by his multiple deportations and returns.”

The court further stated that it understood and was empathetic towards Barajas-

Palomar’s medical circumstances, but those did not excuse his violations of the

law. The court was “fairly confident” that the Southern District of Texas “was

thinking along the same lines” when it imposed a 20-month sentence, which the

court found was a “fairly significant sentence” that “underscore[d] the lack of

respect [Barajas-Palomar] has by continuing to return to this country illegally.”

      The court then found that a within-guideline range sentence was not

sufficient to satisfy the statutory purposes of § 3553(a) and imposed an upward-

variance sentence of 18 months of imprisonment. Barajas-Palomar objected to the

procedural reasonableness of the sentence, in that it exceeded the guideline

amount, and the substantive reasonableness of the sentence, in that it was more

severe than necessary under the circumstances.

                                  II. DISCUSSION

      On appeal, Barajas-Palomar argues that the district court abused its

discretion by imposing a substantively unreasonable, above-guideline sentence.

He also argues that the district court committed a clear error of judgment because it

relied on the irrelevant factor of his prior sentences and did not explain its reasons

for the upward variance.




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      We review the substantive reasonableness of the district court’s sentence

upon revocation of supervised release for an abuse of discretion. United States v.

Trailer, 827 F.3d 933, 935 (11th Cir. 2016). When reviewing for procedural

reasonableness, we ordinarily consider legal issues de novo and review factual

findings for clear error. United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir.

2010). We have held that a defendant’s argument that a district court failed to

explain the reasons for its above-guideline sentence is reviewed de novo, even

when a defendant fails to object on those grounds below. United States v. Parks,

823 F.3d 990, 996-97 (11th Cir. 2016).

      Under 18 U.S.C. § 3583(e), a district court may, upon finding that a

defendant has violated the conditions of his supervised release, revoke the term of

supervised release and impose a sentence of imprisonment, after considering the

§ 3553(a) sentencing factors. 18 U.S.C. § 3583(e)(3). The factors set out

in § 3553(a) include the criminal history of the defendant, the seriousness of the

crime, the promotion of respect for the law, just punishment, and adequate

deterrence. 18 U.S.C. § 3553(a). Further, the commentary to the Guidelines

provides that, “at revocation, the court should sanction primarily the defendant’s

breach of trust, while taking into account, to a limited degree, the seriousness of

the underlying violation and the criminal history of the violator.” U.S.S.G Ch.7,

Pt. A, intro. cmt. 3(b).


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      When reviewing a sentence for reasonableness, we utilize a two-step process

whereby we first ensure that the district court committed no significant procedural

error, and then determine whether the district court’s sentence was substantively

reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). The failure to explain a

chosen sentence is a procedural error. Id. In explaining the chosen sentence,

however, the district court need not provide detailed reasoning or make specific

findings about the § 3553(a) factors. United States v. Irey, 612 F.3d 1160, 1195

(11th Cir. 2010) (en banc). The district court’s explanation must only be adequate

“to satisfy the appellate court that [it] has considered the parties’ arguments and

has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita

v. United States, 551 U.S. 338, 356 (2007).

      As to substantive reasonableness, the 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 improper or irrelevant factor,

or (3) commits a clear error of judgment in considering the proper factors.” Irey,

612 F.3d at 1189 (quoting United States v. Campa, 459 F.3d 1121, 1174 (11th Cir.

2006) (en banc)). Nonetheless, the district court has wide discretion in considering

and weighing the § 3553(a) factors, including deciding whether the factors justify a

variance from the guideline range. United States v. Rodriguez, 628 F.3d 1258,

1264 (11th Cir. 2010). Accordingly, the district court does not have to give all the


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factors equal weight and is given discretion to attach great weight to one factor

over another. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir.

2015).

      An indicator of an unreasonable sentence is a district court’s unjustified

reliance on any one of the § 3553(a) factors. United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008). However, a district court’s sentence does not become

unreasonable merely because the court did not accept the prosecutor’s or defense

counsel’s recommendation. See United States v. Valnor, 451 F.3d 744, 745-46

(11th Cir. 2006).

      As an initial matter, even though Barajas-Palomar did not specifically object

to the court’s lack of explanation for the upward variance, and now raises the

challenge in conjunction with his substantive reasonableness analysis, this

assertion is a procedural argument that we review de novo. See Parks, 823 F.3d at

996-97. Nonetheless, his argument is meritless because the district court

adequately explained its reasons for varying upward.

      While the district court was not required to make specific findings about the

§ 3553(a) factors or provide detailed reasoning, it specifically explained that it had

considered Barajas-Palomar’s mitigating arguments and was imposing an upward

variance to comply with the § 3553(a) factors, namely, the need to deter him and

promote respect for the law when his previous convictions had clearly failed to do


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so. See Irey, 612 F.3d at 1195. Thus, the court did not procedurally err in

imposing an 18-month sentence, as its explanation was adequate to show that it

had considered the parties’ arguments and had a reasoned basis for its chosen

sentence. See Rita, 551 U.S. at 356.

      As for the substantive reasonableness of his sentence, his conviction in

Texas was directly relevant to breach of trust, given that it was a violation of his

supervised release, and the court properly exercised its discretion by focusing on

its need to deter him and promote respect for the law, based on his six prior

deportations. See U.S.S.G Ch.7, Pt. A, Introduction, 3(b); Rosales-Bruno, 789

F.3d at 1254; 18 U.S.C. § 3553(a). Barajas-Palomar relies on our unpublished,

nonbinding, decision in United States v. Ochoa-Molina, 664 F. App’x 898 (11th

Cir. 2016), and argues that the court abused its discretion by giving improper

weight to his prior sentences, which he argues were irrelevant to the proper

consideration of whether his conduct constituted a “breach of trust.” However,

unlike in Ochoa-Molina, the district court here did not use his 20-month sentence

for his Texas conviction as a “floor” for his current sentence. See id. at 900.

Instead, the court pointed out that the district court in Texas probably had imposed

a significant sentence based on the same reasoning—that a longer sentence was

needed to adequately deter Barajas-Palomar from illegally reentering the United

States for the eighth time.


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      Finally, his sentence was not unreasonable merely because the district court

did not accept the parties’ sentencing recommendations. See Valnor, 451 F.3d at

745-46. Thus, the district court did not give significant weight to an improper

factor or commit a clear error of judgment in considering the proper factors. See

Irey, 612 F.3d at 1189.

      AFFIRMED.




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