United States v. Abel Sabino-Hernandez

Case: 17-11562 Date Filed: 10/31/2017 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-11562 Non-Argument Calendar ________________________ D.C. Docket No. 1:16-cr-00398-ODE-JFK-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ABEL SABINO-HERNANDEZ, a.k.a. Abel Hernandez, a.k.a. Abel Sabino, a.k.a. Jose Hernandez Sabino, a.k.a. Jose Sabino-Hernandez, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (October 31, 2017) Case: 17-11562 Date Filed: 10/31/2017 Page: 2 of 8 Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges. PER CURIAM: Abel Sabino-Hernandez, a citizen of Mexico, appeals his 20-month sentence for illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). He argues that during sentencing the prosecutor engaged in misconduct by misrepresenting the number of times he had entered and been removed from the United States and that the district court relied on the misrepresentations when it imposed a 14-month upward variance from the high end of his guidelines range, rendering his sentence procedurally unreasonable. For the reasons set forth below, we affirm. I. After Sabino-Hernandez pled guilty to illegal reentry, the probation office prepared a presentence investigation report (“PSI”). The PSI detailed Sabino- Hernandez’s several passages to the United States. In September 1999, Customs and Border Protection (“CBP”) encountered him in California and permitted him to return voluntarily to Mexico. The PSI additionally noted that Sabino-Hernandez admitted returning to Mexico (from the United States) in 2001 to care for a family member. By 2003, Sabino-Hernandez was back in the United States, where he was arrested and convicted of various state-law offenses. In October 2010, CBP again encountered Sabino-Hernandez, this time in Arizona, and again permitted him to 2 Case: 17-11562 Date Filed: 10/31/2017 Page: 3 of 8 return voluntarily to Mexico. Less than a week later, CBP found Sabino- Hernandez back in Arizona. This time, CBP issued a Notice and Order of Expedited Removal, pursuant to which Sabino-Hernandez was deported to Mexico. In September 2016, Sabino-Hernandez was arrested and jailed in Dekalb County, Georgia, for discharging a firearm near a highway or street and reckless conduct. After confirming that Sabino-Hernandez was a citizen of Mexico and had entered the United States illegally, Immigration and Customs Enforcement (“ICE”) took him into custody. The PSI calculated a base offense level of 8 under U.S.S.G. § 2L1.2(a). With a two-level decrease for acceptance of responsibility under U.S.S.G. § 3E1.1(a), Sabino-Hernandez’s total offense level was 6. The PSI assigned him no criminal history points, although it noted his previous arrests and convictions, including for driving under the influence, aggravated assault, battery, criminal trespass, and theft by taking, all of which occurred in 2003 and 2004. Based on an offense level of 6 and a criminal history category of I, the PSI calculated Sabino- Hernandez’s guidelines range to be 0 to 6 months’ imprisonment. Neither party objected to the PSI, and at sentencing, the district court accepted the PSI’s guidelines range calculation. Sabino-Hernandez advocated for ...

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