            Case: 15-13806    Date Filed: 07/21/2016   Page: 1 of 10


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-13806
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 2:14-cr-00647-MHT-SRW-2

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                   versus

JOSE HERNANDEZ,

                                                            Defendant-Appellant.

                         ________________________

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

                                (July 21, 2016)

Before JORDAN, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Jose Hernandez appeals his 210-month sentence, imposed below the

advisory Sentencing Guidelines range. Hernandez was found guilty of conspiracy

to distribute 500 grams or more of methamphetamine under 21 U.S.C. §§ 841(a)(1)
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and 846 and possession with intent to distribute 50 grams or more of

methamphetamine under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district

court sentenced him to 210 months of incarceration and five years of supervised

release. Hernandez asserts his sentence was procedurally and substantively

unreasonable. After careful consideration, we affirm.

                               I. BACKGROUND

      Hernandez led a conspiracy with co-defendants Douglas Berry and Cristian

Espinoza to distribute over 900 grams of methamphetamine throughout Pike

County, Alabama. State law enforcement in Level Plains, Alabama first received

information regarding the conspiracy from a confidential informant who reported

that Berry was selling methamphetamine from his residence. After acquiring a

search warrant for Berry’s residence, law enforcement searched the premises and

found several plastic bags containing crystal methamphetamine. Berry informed

law enforcement that he had received the methamphetamine from co-defendants

Hernandez and Espinoza and directed law enforcement to a trailer where he knew

Hernandez and Espinoza resided. Law enforcement officials searched this

residence and found bags of crystal methamphetamine. The trailer was registered

to Espinoza but contained a passport and other personal items belonging to

Hernandez.




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      Upon finding a total of over 900 grams of methamphetamine in Berry’s

residence and Espinoza and Hernandez’s trailer, police arrested all three

individuals. They were indicted for conspiracy to distribute 500 grams or more of

methamphetamine and possession with intent to distribute 50 grams or more of

methamphetamine. Berry and Espinoza pled guilty to their charges, but Hernandez

proceeded to trial, where a jury found him guilty of both charges. Berry testified at

sentencing that, while he was imprisoned, on the day before and the day after he

testified at Hernandez’s trial Hernandez made threatening gestures at him and

offered to pay $5,000 to anyone who would “take [him] out.” Sentencing Hr’g Tr.

at 17 (Doc. 187).1

      Prior to Hernandez’s sentencing hearing, a probation officer prepared a

presentence investigation report (“PSI”) assigning Hernandez a Sentencing

Guidelines range of 235-293 months. Hernandez’s two charges each had a ten-

year statutory minimum of incarceration and a maximum of life imprisonment. At

the sentencing hearing, the government recommended a 293-month sentence and

Hernandez requested a sentence at the statutory minimum of 120 months.

Hernandez argued that a variance was appropriate in light of his lack of criminal

history, his personal reputation, the small scale of the criminal activity for which

he was convicted, and his co-defendants’ lesser sentences. After hearing these


      1
          “Doc.” refers to the docket entry in the district court record in this case.
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arguments, the district court applied a downward variance and sentenced

Hernandez to 210 months’ imprisonment. 2 The district court stated that a variance

was appropriate because Hernandez admitted guilt for his offense after his trial and

“he should be given some credit for that.” Id. at 52. Hernandez appeals his

sentence, asserting that the district court imposed an unreasonable sentence in

violation of 18 U.S.C. § 3553(a) because it failed to consider the appropriate

statutory factors.3

                                     II. DISCUSSION

       Pursuant to 18 U.S.C. § 3553(a), a district court must devise a sentence

sufficient, but not greater than necessary, to meet the statutory objectives of

§ 3553(a) and after considering the factors listed therein. 18 U.S.C. § 3553(a).

These factors include: the nature and circumstances of the offense, the history and

characteristics of the defendant, the need to reflect the seriousness of the offense,

the need to promote respect for the law, the need to provide just punishment for the

offense, the need to afford adequate deterrence, the need to protect the public from

further crimes, the Sentencing Guidelines range, pertinent policy statements of the



       2
         The district court selected Hernandez’s 210-month sentence after a probation officer
informed the court that Hernandez’s guidelines range would have been 168-210 months if he had
pled guilty to his charges.
       3
         It is unclear whether Hernandez’s appeal contests the reasonableness of his sentence on
substantive or procedural grounds. In an abundance of caution, we review his sentence for both
procedural and substantive reasonableness.
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Sentencing Commission, the need to avoid unwanted sentencing disparities, and

the need to provide restitution to victims. Id.

      We review a sentence for reasonableness under an abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007). This standard includes a

level of due deference to the district court because “[t]he sentencing judge is in a

superior position to find facts and judge their import under § 3553(a).” Id.

(internal quotation mark omitted). We review the reasonableness of a sentence by

evaluating whether the sentence imposed resulted from procedural errors or was

substantively unreasonable based on the totality of the circumstances. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The challenging party has

the burden of showing the sentence is unreasonable based on the record and the

factors found in 18 U.S.C. § 3553(a). Id.

      A. Procedural Reasonableness

      In reviewing a sentence for reasonableness, we must consider whether the

district court abused its discretion by committing any procedural errors in

sentencing the defendant such as “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.” Gall, 552 U.S. at 51. Hernandez

argues that his sentence is procedurally unreasonable because the district court


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failed to consider any of the § 3553(a) factors besides the Sentencing Guidelines

range. We disagree.

      Hernandez’s statement that the district court did not consider any § 3553(a)

factors other than the guidelines range is unsupported by the record. The district

court referenced the § 3553(a) factors by first stating that it “evaluated the

reasonableness of [Hernandez’s] sentence through the lens of Section 3553.”

Sentencing Hr’g Tr. at 51 (Doc. 187). After determining Hernandez’s sentence,

the district court reemphasized that “the sentence imposed is sufficient, but not

greater than necessary, to comply with the statutory purposes of sentencing set

forth in subpart (a) of Section 3553.” Id. at 52.

      Although the district court did not mention each of the § 3553(a) factors at

Hernandez’s sentencing hearing, it was under no obligation to do so. “The district

court need not state on the record that it has explicitly considered each factor and

need not discuss each factor.” United States v. Dorman, 488 F.3d 936, 938 (11th

Cir. 2007). The district court is only required to acknowledge that it considered

the defendant’s arguments and the § 3553(a) factors. Id.

      Even if the district court had failed to state explicitly that it had considered

the § 3553(a) factors, we can infer from the record that it did so. At the sentencing

hearing, the district court considered arguments by Hernandez’s counsel for a

downward variance based on the small scale of his criminal activity, his lack of


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criminal history, and his co-defendants’ lesser sentences. Following those

statements, the district court listened to Hernandez speak about his minimal

involvement in the conspiracy.

      Furthermore, the court acknowledged that Hernandez had no criminal

history and reassured him that his lack of criminal history was a factor taken into

account in calculating his guidelines range, evidencing that the court considered

his personal history. Indeed, after considering Hernandez’s arguments and his

background, the court elected to grant Hernandez a variance 25 months below the

guidelines range. In sum, the district court’s statements were sufficient to indicate

that it considered the § 3553(a) factors and thus made no procedural error. The

sentence is procedurally reasonable.

      B. Substantive Reasonableness

      Once we conclude that a sentence is procedurally sound, we must consider

whether it is substantively reasonable under an abuse of discretion standard of

review, taking into account the totality of the circumstances. Gall, 552 U.S. at 51.

A district court abuses its discretion and imposes a substantively unreasonable

sentence 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.” United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (internal quotation mark


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omitted). The weight to be given to the § 3553(a) factors is decided by the district

court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

      We will not vacate a sentence unless we have a “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.” United States v. Alfaro-Moncada, 607

F.3d 720, 735 (11th Cir. 2010) (internal quotation marks omitted). Indeed, “it is

only the rare sentence that will be substantively unreasonable.” United States v.

Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015) (internal quotation marks

omitted). “If [a] sentence is within the guidelines range, [an] appellate court may,

but is not required to, apply a presumption of reasonableness.” Gall, 552 U.S. at

51. Although we do not apply an automatic presumption of reasonableness to

sentences within the guidelines range, we do “ordinarily . . . expect a sentence

within the Guidelines range to be reasonable.” United States v. Hunt, 526 F.3d

739, 746 (11th Cir. 2008) (internal quotation marks omitted). We also consider the

fact that a sentence is below the statutory maximum as an indication of

reasonableness. See United States v. Cubero, 754 F.3d 888, 898 (11th Cir. 2014).

      Hernandez contends that his sentence is greater than necessary to achieve the

statutory purposes of § 3553(a) and that a sentence at the statutory minimum of

120 months would have been sufficient. We disagree and conclude that the district


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court imposed a reasonable sentence. Hernandez was the leader of a conspiracy to

distribute methamphetamine. He argues he only distributed drugs on a small scale,

but the evidence adduced at his trial tells a different story. Law enforcement found

492 grams of methamphetamine inside Hernandez’s residence and 469 grams in

Berry’s residence that Berry testified Hernandez had supplied. Hernandez also

attempted to intimidate Berry before Berry testified at Hernandez’s trial. Given

these circumstances, we do not find a sentence of 210 months’ imprisonment to be

substantively unreasonable, particularly when the sentence is below both the

statutory maximum and Hernandez’s guidelines range. See Cubero, 754 F.3d at

898; Hunt, 526 F.3d at 746.

      Hernandez also argues that his sentence is substantively unreasonable

because it is significantly harsher than his co-defendants’ sentences. While

§ 3553(a) does instruct district courts to avoid unwarranted sentence disparities

among comparable defendants, Hernandez has failed to demonstrate that he is

similarly situated to his co-defendants. See United States v. Holt, 777 F.3d 1234,

1270 (11th Cir. 2015). The evidence showed that Hernandez led the conspiracy

and directed the drug transactions. He used Berry to distribute the

methamphetamine and Espinoza to translate instructions to Berry. And he was

also the only defendant in the conspiracy who went to trial, while his co-

defendants pled guilty.


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       Moreover, even if Hernandez succeeded in demonstrating his similarity to

his co-defendants, a “[d]isparity between the sentences imposed on codefendants is

generally not an appropriate basis for relief on appeal.” United States v. Regueiro,

240 F.3d 1321, 1325-26 (11th Cir. 2001). This is because “adjust[ing] the sentence

of a co-defendant in order to cure an apparently unjustified disparity between

defendants in an individual case [would] simply create another, wholly

unwarranted disparity between the defendant receiving the adjustment and all

similar offenders in other cases.” United States v. Chotas, 968 F.2d 1193, 1198

(11th Cir. 1992). As such, we see no reason to conclude that Hernandez received a

substantively unreasonable sentence.

                                   III. CONCLUSION

       Hernandez has failed to demonstrate that his sentence is procedurally or

substantively unreasonable. We therefore affirm the sentence imposed by the

district court.

       AFFIRMED.




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