United States v. Pablo Zapata, Jr.
702 F. App'x 831
| 11th Cir. | 2017Background
- In 2008 Zapata applied for a U.S. passport, falsely claiming birth in the U.S. Virgin Islands and U.S. citizenship; a passport was issued. A Belize birth certificate was later located.
- Immigration records showed Zapata had been removed from the U.S. in 1980 and had no record of lawful reentry.
- Charged with falsifying a passport application (18 U.S.C. § 1542) and related counts; pleaded guilty to Count 1 in exchange for dismissal of other counts.
- PSR: base offense level 8, +2 for prior deportation, +4 for fraudulently obtaining/using a passport, -2 for acceptance, total offense level 12; criminal history category VI based on prior convictions including sexual-offense and registration failures; guideline range 30–37 months.
- At sentencing the district court imposed 60 months (a 23-month upward variance), citing Zapata’s long-term illegal presence, repeated law violations, failure to register as a sex offender, need for deterrence, and public protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural error: failure to calculate guideline range | N/A (government) | Zapata: district court didn’t calculate or rely on Guidelines before varying | Court: calculated both ranges (with and without enhancement); no error |
| Procedural error: failure to explain upward variance | N/A | Zapata: court failed to adequately explain reasons for 60-month sentence | Court: judge gave reasons (criminal history, refusal to comply with law, failure to register); explanation adequate |
| Substantive reasonableness of 60-month sentence | N/A | Zapata: 60 months is substantively unreasonable and double-counts criminal history | Court: variance reasonable (below 10-year max), supported by §3553(a) factors; court may rely on factors already in Guidelines |
| Plain-error review standard applicability | Government: some arguments should be plain-error reviewed | Zapata: challenges even if not preserved | Court: applied plain-error where appropriate but also reviewed de novo for statutory explanation requirement |
Key Cases Cited
- United States v. Cubero, 754 F.3d 888 (11th Cir.) (two-step abuse-of-discretion review for sentences)
- United States v. Pugh, 515 F.3d 1179 (11th Cir.) (defendant bears burden to show sentence unreasonable)
- United States v. Vandergrift, 754 F.3d 1303 (11th Cir.) (plain-error review of unpreserved sentencing objections)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (Sup. Ct.) (effect of Guidelines miscalculation on substantial rights)
- United States v. Parks, 823 F.3d 990 (11th Cir.) (requirement to explain chosen sentence under §3553(c))
- United States v. Bonilla, 463 F.3d 1176 (11th Cir.) (explanation requirement for sentences)
- United States v. Livesay, 525 F.3d 1081 (11th Cir.) (adequacy of district court’s reasoned explanation)
- Rita v. United States, 551 U.S. 338 (Sup. Ct.) (judicial explanation for sentences outside Guidelines)
- United States v. Gonzalez, 550 F.3d 1319 (11th Cir.) (sentence well below statutory maximum suggests reasonableness)
- United States v. Rodriguez, 628 F.3d 1258 (11th Cir.) (courts may rely on factors already considered in Guidelines when imposing a variance)
- United States v. Irey, 612 F.3d 1160 (11th Cir.) (standard for substantive unreasonableness)
- United States v. Madden, 733 F.3d 1314 (11th Cir.) (plain-error framework articulated)