United States v. Roberto Roque-Reyes, 679 F. App'x 890

Roberto Roque-Reyes pleaded guilty to conspiring to encourage and induce aliens to enter the U.S. after Coast Guard interdicted two jet skis carrying six people from Cuba, including him and three additional non-family passengers.
The PSR assigned a base offense level 12, reduced 2 levels for acceptance, resulting in total offense level 10 and a Guidelines range of 6–12 months; defendant filed no PSR objections.
At sentencing the Government recommended 6 months (low end of Guidelines); the district court instead imposed a 24‑month sentence (12‑month upward variance) citing deterrence and its belief this was a commercial alien‑smuggling enterprise.
The district court relied on facts it viewed as indicative of commercial smuggling: purchase/possession of two jet skis, GPS, satellite phone, recent registration of jet skis, and presumed payment for smuggling.
The record, however, contained no evidence that Roque‑Reyes owned or purchased the jet skis or electronic equipment, no evidence of payment or prior smuggling, and the Government did not contest defendant’s claim that he went to Cuba to pick up a relative.
The Eleventh Circuit vacated the sentence and remanded for resentencing, holding the district court relied on clearly erroneous factual findings when imposing the upward variance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence was procedurally reasonable	District court: upward variance justified to deter commercial alien‑smuggling enterprises	Roque‑Reyes: no evidence supported finding of commercial smuggling; sentence based on speculation	Vacated — court relied on clearly erroneous facts, so procedure was flawed
Whether district court may rely on inferences about funding/equipment absent direct proof	Government: reasonable to infer commercial conduct from equipment and timing	Roque‑Reyes: equipment not shown to belong to him; timing and ownership facts contradict court’s assumptions	Court: inferences must be supported by substantial, specific evidence; here they were not
Whether lack of Government challenge to defendant’s account permits variance	Government: deterrence justification could still support variance	Roque‑Reyes: absence of contrary evidence means court’s commercial‑enterprise finding unsupported	Court: Government’s failure to rebut and absence of supporting facts render finding clearly erroneous
Whether an upward variance could be proper on remand	N/A (Government suggested deterrence still valid)	N/A (defendant preserved objection)	Court: variance could be imposed on remand if based on accurate, supported facts and proper §3553(a) analysis

United States v. Cubero, 754 F.3d 888 (11th Cir. 2014) (two‑step reasonableness review: procedural then substantive)
United States v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008) (sentence procedurally unreasonable if based on clearly erroneous facts)
United States v. Robertson, 493 F.3d 1322 (11th Cir. 2007) (sentencing findings must be supported by substantial evidence)
Watts v. United States, 519 U.S. 148 (1997) (Government must prove sentencing facts by a preponderance of the evidence)
United States v. Creel, 783 F.3d 1357 (11th Cir. 2015) (sentencing facts must be reliable and specific, not speculation)
United States v. Newman, 614 F.3d 1232 (11th Cir. 2010) (district court may draw reasonable inferences but cannot base findings on speculation)
United States v. Dominguez, 661 F.3d 1051 (11th Cir. 2011) (financial‑gain evidence supports commercial‑smuggling enhancement in related context)