UNITED STATES of America, Plaintiff-Appellee, v. Ricardo Lenin OSORIO-MORENO, Defendant-Appellant.
No. 14-14447.
United States Court of Appeals, Eleventh Circuit.
March 1, 2016.
1282
WILLIAM PRYOR, Circuit Judge
Lisa A. Hirsch, Monica Michelle Beamer, Wifredo A. Ferrer, Kathleen Mary Salyer, Emily M. Smachetti, U.S. Attorney‘s Office, Miami, FL, for Plaintiff-Appellee. Manuel Arteaga-Gomez, Alex Arteago-Gomez, Michael Caruso, Federal Public Defender, Federal Public Defender‘s Office, Miami, FL, for Defendant-Aрpellant.
Going forward, the District Court should make sufficient findings to resolve the jurisdictional-merits questions identified by the court‘s opinion.3 These findings may, but need not necessarily, extend beyond the exhibits the United States attached to its motion to dismiss. The District Court should then decide whether it has subject-matter jurisdiction over Douglas‘s suit in line with оur decision in Lawrence, 919 F.2d at 1530-31. Though other cases may prove trickier to resolve and thus require relatively extensive discovery and jurisdictional fact-finding, this does not appear to be so here, given the straightforward nature of Douglas‘s pay-grade claim.
With that said, I concur fully in the court‘s opinion.
WILLIAM PRYOR, Circuit Judge:
This appeal requires us to decide whether a sentence above the guideline range for
I. BACKGROUND
Osorio, a citizen of Nicaragua, pleaded guilty to illegally reentering the United States after deportation, id. 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 without violence, another strong armed robbery..., cannabis possession, another strong armed robbery... [and] open alcohol containеr 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 poliсe 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 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 convictеd of carrying a concealed weapon. He was fined and received one point. At 26, he was convicted of cocaine possession. He received 30
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 receivеd 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 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 restrainеd.” 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 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. Thеse 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 con-
Osorio had a base offense level of 8,
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 beсause 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 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 cоurt determined that this sentence was appropriate under the statutory sentencing factors, see
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 improper or irrelevаnt 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
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, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). That approach “come[s] too close to creating an impermissible presumption of unreasonableness for sentences outside the 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 conсlusion that an unusually harsh or light sentence is appropriate.” Irey, 612 F.3d at 1186 (quoting Gall, 552 U.S. at 46, 128 S.Ct. 586).
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 stepfathеr 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 reеntered 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
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
IV. CONCLUSION
We AFFIRM Osorio‘s sentence.
WILLIAM PRYOR
UNITED STATES CIRCUIT JUDGE
