Petition for Writ of Certiorari — Tapanes v. United States (No. 08-387)

Re Ss ay U.S.

08-387 SEP 24 208

OFFICE OF THE CLERK

Wailam K. Suter, Clerk

No.

THE SUPREME COURT OF THE UNITED STATES

GERARDO TAPANES, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh

Circuit

PETITION FOR WRIT OF CERTIORARI

Martin J. Beguiristain

Counsel of Record

Martin Beguiristain, P.A.

12930 SW 128 Street

Suite 103

Miami, FL 33186

305 / 251-2302

QUESTION PRESENTED FOR REVIEW

Whether sentencing courts violate the First

Amendment to the United States Constitution when

they take into account obscene gestures made by

defendants to law enforcement personnel, and use

this information as a basis for imposing a sentence

ten times greater than the applicable sentencing

guidelines range?

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TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS........0.000.000..... 2

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REASONS FOR GRANTING THE PETITION ....7

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TABLE OF AUTHORITIES

Cases

City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502,

I a a coe ee eee a 8

Gall v. United States, --- U.S. ----, 128 S.Ct. 586, 594,

BS Rae LT Dn oivss secs ccscssdsecvecisoesis cians 7,10

Kimbrough v. United States 128 S.Ct. 558, 169

Bei ne aio ck cavccsus ba vxdenecddussbusiswkues 7

New York Times v. Sullivan, 376 U.S. 254, 273, 84

I i etl 8

Rita v. United States, 551 U:S. ----, 127 S.Ct. 2456,

ZAG, 166 £..G.20 BOS COOT) «o.oo ccccccccccsncscasks.. 1, x0

Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 895

CI oy didi oa) Ju tac pcaucida oe vase scecscachisunss nioenenuees ied 8

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

er ee te ee in kb iirdc sv eedavces agen canta tesssioudsueves 7

United States v. Tapanes, No. 07-14763, 2008 WL

2549051 (11th Cir. June 27, 2008) ..................... 2,6

Statutes

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Constitutional Provisions

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THE SUPREME COURT OF THE UNITED STATES

GERARDO TAPANES, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh

Circuit

PETITION FOR WRIT OF CERTIORARI

Gerardo Tapanes petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit.

OPINION BELOW

The United States Court of Appeals for the

Eleventh Circuit issued an opinion on June 27, 2008

affirming Petitioner’s sentence and holding that the

Petitioners First Amendment rights were not

violated during sentencing where the district court

l

considered Petitioner's obscene hand gesture during

the sentencing phase because the gesture was

relevant to sentencing. The decision of the Circuit

Court is reported as United States v. Tapanes, No.

07-14763, 2008 WL 2549051 (llth Cir. June 27,

2008), and is reprinted in the appendix to this

petition.

JURISDICTION

The judgment of the United States Court of

Appeals for the Eleventh Circuit was entered June

27, 2008. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

The First Amendment to the United States

Constitution states:

Congress shall make no law respecting

an establishment of religion, or

prohibiting the free exercise thereof; or

abridging the freedom of speech, or of

the press; or the right of the people

peaceably to assemble, and to petition

the government for a_ redress of

grievances.

U.S.C.A. Const. Amend. 1.

2

STATEMENT OF THE CASE

A. Proceedings Below

This is a direct appeal from a judgment

imposed by the United States District Court for the

Southern District of Florida following a guilty plea to

a one-count indictment charging petitioner with

“[b]eing the master, operator and person in charge of

such vessel, did knowingly fail to obey an order by

authorized Federal law enforcement officers to heave

to a U.S. Coast Guard vessel: in violation of Title 18

U.S.C. § 2237(a)(1).

The two-day sentencing hearing was held

October 1st and 3"4, 2007, at the conclusion of which

Tapanes was sentenced to a term of 60 months

imprisonment, which was the statutory maximum

for the offense, and ten times greater than the 0-6

month range of the Sentencing Guidelines. A Notice

of Appeal was filed on October 9, 2007.

The parties briefed and submitted the case to

the United States Court of Appeals for the Eleventh

Circuit. On June 27, 2008 the Court of Appeals

affirmed the district court’s judgment.

B. Factual Background

The relevant facts, as described by the

Court of Appeals in its opinion, are as follows:

A presentence investigation report (“PSI”)

was prepared after Tapanes entered a

guilty plea. According to the PSI, the

USCG cutter Tornado encountered a go-

fast vessel, which had its navigational

lights turned off, 27 nautical miles north of

Cuba. After the Tornado commanded the

go-fast vessel to stop, the vessel continued

in a northerly course at approximately 30

nautical miles per hour and a lengthy

chase ensued. The PSI noted that “[d]uring

the chase, the go-fast vessel's operator,

later identified as Gerardo Tapanes,

immediately energized the vessel's

navigation lights, signaled an obscene hand

gesture (his middle finger), and attempted

to ram his vessel into the ... Tornado.”

When the Tornado was within 20 yards of

the go-fast vessel, it hailed the vessel in

English and Spanish, telling the vessel to

“Stop, this is the [USCG].” Tapanes

maneuvered the go-fast vessel directly at

the Tornado at one point, which created a

collision situation. After a 23-nautical mile

chase, Tapanes finally stopped the go-fast

vessel, and he and his’_ passenger

surrendered. In his post-arrest statement,

Tapanes indicated that he believed he was

being chased by the Cuban Coast Guard

4

and denied making any hand gestures. The

probation officer calculated a Guidelines

range of zero to six months based upon

an adjusted offense level of eight and a

criminal history category of I.

At the sentencing hearing, Tapanes

objected to the PSI's fact that he had made

a hand gesture to the USCG. Tapanes

claimed that he was merely shading his

eyes because the USCG was shining a light

on his vessel. The district court stated,

.. his behavior during a one-and-a-

half hour chase for 23 nautical miles,

both his hand gesture and his

maneuvering in front of the [USCG]

vessel, are matters that concern me

in terms of considering a reasonable

sentence and the statutory factors

about promoting respect for law and

those other factors set forth in 3553.

And my recollection, at least from

the information contained in the

PSI, was that he was in very close

proximity to the [USCG] vessel when

he made his gesture. And I want to

give him the benefit of the doubt if,

in fact, there is some

misunderstanding there....

The government stated that it could bring

one of the USCG officers in to testify about

what the officer witnessed concerning the

5

obscene gesture. The court indicated that it

was prepared to give Tapanes the benefit of

the doubt, but if the witness testified “that

it was a very clear and unambiguous

obscene gesture, then [Tapanes’s]

testimony before [the court] today to the

contrary concerns [the court] even more.”

The court indicated that it would like

the government to bring the witness in

because “[ilt's a difference between six

months and 60 months.” The court

continued the hearing.

When the sentencing hearing continued,

USCG Senior Chief Barry White testified

that the pursuit of Tapanes's vessel was

“one of the most violent pursuits [he had}

been involved in,” and that there was no

doubt in his mind that Tapanes had made

an obscene gesture toward the USCG.

The district court stated that it believed an

above-Guidelines sentence was appropriate

in part due to Tapanes's’. conduct

concerning the chase. After the court

indicated that it had considered the

statements of all parties, the PSI “which

contains the advisory [G]uidelines and the

statutory factors,” it imposed a 60-month

sentence.

United States v. Tapanes, No. 97-14763, 2008 WL

2549051, at *1-2 (11th Cir. June 27, 2008) (emphasis

added).

REASONS FOR GRANTING THE PETITION

This Court should grant the writ of certiorari

because after Booker, “a district judge must give

serious consideration to the extent of any departure

from the Guidelines and must explain his conclusion

that an unusually lenient or an unusually harsh

sentence is appropriate in a particular case with

sufficient justifications.” Gall v. United States, ---

USS. ----, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007),

Booker rendered the Sentencing Guidelines

advisory, but preserved a key role for the Sentencing

Commission. Kimbrough v. United States 128 S.Ct.

558, 562, 169 L.Ed.2d 481 (2007) (citing United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005)) In the ordinary case, the

Commission's recommendation of a sentencing range

will "reflect a rough approximation of sentences that

might achieve § 3553(a)'s objectives." Rita v. United

States, 551 U.S. ----, 127 S.Ct. 2456, 2465, 168

L.Ed.2d 203 (2007).

The First Amendment protects a significant

amount of verbal criticism and challenge directed at

7

police officers. “Speech is often provocative and

challenging... [But it] is nevertheless protected

against censorship or punishment, unless shown

likely to produce a clear and present danger of a

serious substantive evil that rises far above public

inconvenience, annoyance, or unrest.” City of

Houston v. Hill, 482 U.S. 451, 460, 107 S.Ct. 2502,

2509 (1987) (quoting Yerminiello v. Chicago, 337

U.S. 1, 4, 69 S.Ct. 894, 895 (1949)).

In City of Houston the Court recognized that it

is fundamental for “[t]he freedom of individuals

verbally to oppose or challenge police action without

thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation

from a police state.” Id., 482 U.S. at 462-463, 107

S.Ct. At 2510 (1987).

Furthermore, it is a “prized American

privilege to speak one’s mind, although not always

with perfect good taste, on all public institutions, and

this opportunity is to be afforded for ‘vigorous

advocacy’ no less than ‘abstract discussion.” New

York Times v. Sullivan, 376 U.S. 254, 269, 84 S.Ct.

710 (1964) (citations omitted).

The Petitioner's action of raising his middle

finger is protected action under the First

Amendment to the United States Constitution.

Moreover as evidenced by the first sentencing

hearing, Petitioner’s sentence was unreasonably

increased based entirely on Petitioner's obscene

gesture. In the alternative, even if this conduct is

allowed to be considered during sentencing, the

district court unsuccessfully exercised “reasoned

sentencing judgment” by failing to filter the

Guidelines’ general advice through § 3553(a)’s list of

factors. Rita v. United States, 551 U.S. ----, 127 S.Ct.

2456, 2469, 168 L.Ed.2d 203 (2007).

The United States Supreme Court states that

a sentencing judge must “make an individualized

assessment based on the facts presented.” Gall v.

United States, 128 S.Ct. at 590). If a sentencing

judge decides that an _ outside-the-Guidelines

sentence is warranted, he must consider the extent

of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the

variance. Jd. A major departure should be supported

by a more significant justification than a minor one.

Rita v. United States, 127 S.Ct. at 2456. Here, the

9

justification is insufficiently compelling to support

the degree of the variance where the variance was

ten times more than the upward end of the

applicable Guidelines sentence of 0-6 months.

10

CONCLUSION

A writ of certiorari should be granted to

address whether sentencing courts violate the First

Amendment to the United States Constitution when

they take into account obscene gestures made by

defendants to law enforcement personnel, and use

this information as a basis for imposing a sentence

ten times greater than the applicable sentencing

guidelines range. According to the First Amendment

to the United States Constitution, Congress shall

make no law [...] abridging the freedom of speech,

[...]. U.S.C.A. Const. Amend. 1. The freedom of

individuals verbally to oppose or challenge police

action without thereby risking arrest or upward

sentencing variances is one of the _ principal

characteristics by which we distinguish a free nation

from a police state.

Respectfully submitted,

Martin J. Beguiristain

Counsel of Record

Martin Beguiristain, P.A.

12930 SW 128t Street

Suite 103

Miami, FL 33186

305 / 251-2302

1}

THE SUPREME COURT OF THE UNITED STATES

GERARDO TAPANES, Petitioner

UNITED STATES OF AMERICA, Respondent

APPENDIX

Decision of the United States Court of Appeals for

the Tioventh Circuit «...cesikscsec acess eee A-1

12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 07-14763

Non-Argument Calendar

D.C. Docket No. 07-10006-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellce,

versus

GERARDO TAPANES,

Defendant-

Appellant.

Appeal from the United States District Court

for the Southern District of Florida

A-1

(June 27, 2008)

Before HULL, PRYOR nd FAY, Circuit Judges.

PER CURIAM:

Soesata Tapanes appeals his 60-month

sentence for failure to obey an order by authorized

federal law enforcement officers to heave to a U.S.

Coast Guard (“USCG”) vessel, in violation of 18

U.S.C. § 2237(a). First, Tapanes argues that the

district court violated his First Amendment rights by

considering the obscene hand gesture that Tapanes

made to USCG authorities, in order to enhance his

sentence ten-fold. Second, Tapanes argues that his

above-Guidelines’ sentence is unreasonable in light

of the 18 U.S.C. § 3553(a) factors because the court

unjustifiably replied upon only one of the factors,

namely the need to reflect the seriousness of the

A-2

offense, to promote respect for the law, and to

provide just punishment for the offense. For the

reasons set forth more fully below, we affirm.

A presentence investigation report (“PSI”) was

prepared after Tapanes entered a guilty plea.

According to the PSI, the USCG cutter Tornado

encountered a_ go-fast vessel, which had its

navigational lights turned off, 27 nautical miles

north of Cuba. After the Tornado commanded the

go-fast vessel to stop, the vessel continued in a

northerly course at approximately 30 nautical miles

per hour and a lengthy chase ensued. The PSI noted

that “[dJuring the chase, the go-fast vessel’s operator,

later identified as Gerardo Tapanes, immediately

energized the vessel’s navigation lights, signaled an

A-3

obscene hand gesture (his middle finger), and

attempted to ram his vessel into the . . . Tornado.”

When the Tornado was within 20 yards of the go-fast

vessel, it hailed the vessel in English and Spanish,

telling the vessel to “Stop, this is the [USCQ].”

Tapanes maneuvered the go-fast vessel directly at

the Tornado at one point, which created a collision

situation. After a 23-nautical mile chase, Tapanes

finally stopped the go-fast vessel, and he and his

passenger surrendered. In his post-arrest statement,

Tapanes indicated that he believed he was being

chased by the Cuban Coast Guard and denied

making any hand gestures. The probation officer

calculated a Guidelines range of zero to six months

based upon an adjusted offense level of eight and a

A-4

criminal history category of I.

At the sentencing hearing, Tapanes objected to

the PSI’s fact that he had made a hand gesture to the

USCG. Tapanes claimed that he was merely shading

his eyes because the USCG was shining a light on

his vessel. The district court stated,

... his. behavior during a one-and-a-half

hour chase for 23 nautical miles, both his

hand gesture and his maneuvering in

front of the [USCG] vessel, are matters

that concern me in terms of considering a

reasonable sentence and the statutory

factors about promoting respect for law

and those other factors set forth in 3553.

And my recollection, at least from the

information contained in the PSI, was

that he was in very close proximity to

the [USCG] vessel when he made his

gesture. And I want to give him the

benefit of the doubt if, in fact, there is

some misunderstanding there....

The government stated that it could bring one of the

A-5

USCG officers in to testify about what the officer

witnessed concerning the obscene gesture. The court

indicated that it was prepared to give Tapanes the

benefit of the doubt, but if the witness testified “that

it was a very clear and unambiguous obscene

gesture, then [Tapanes’s] testimony before [the

court] today to the contrary concerns [the court] even

more.” The court indicated that it would like the

government to bring the witness in because “{iJt’s a

difference between six months and 60 months.” The

court continued the hearing.

When the sentencing hearing continued,

USCG Senior Chief Barry White testified that the

pursuit of Tapanes’s vessel was “one of the most

violent pursuits [he had] been involved in,” and

that there was no doubt in his mind that Tapanes

had made an obscene gesture toward the USCG. !

The district court stated that it believed an above-

t On cross-examination, White acknowledged that the pursuit

was extremely dangerous in large part because of the rough

condition of the sea.

A-6

Guidelines sentence was appropriate in part due to

Tapanes’s conduct concerning the chase. After the

court indicated that it had considered the statements

of all parties, the PSI “which contains the advisory

[G]uidelines and the statutory factors,” it imposed a

60month sentence. The court asked for final

objections, and Tapanes' objected to the

reasonableness of the sentence “in lght of the

statutory maximum, the fact that Mr. Tapanes

entered a guilty plea, and all of the other factors

which we enumerated during the course of this

hearing.”

Because Tapanes failed to object to his

sentence on the ground he now raises in his first

issue on appeal, we review his constitutional

argument for plain error only. United States v.

A-7

Martinez, 434 F.3d 1318, 1323 (11th Cir. 2006).

Under a plain error analysis, a defendant must show

“(1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Cotton, 535

U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860

(2002) (citations and internal quotation marks

omitted). “If all three conditions are met, an

appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (citation and

brackets omitted).

“The First Amendment .. . provides that

‘Congress shall make no law .. . abridging the

freedom of speech,” and it affords protection to

A-8

symbolic or expressive conduct as well as to actual

speech.” Virginia v. Black, 538 U.S. 343, 358, 123

S.Ct. 1536, 1547, 155 L.Ed.2d 535 (2003). “The

hallmark of the protection of free speech is to allow

‘free trade in ideas’-even ideas that’ the

overwhelming majority of people might find

distasteful or discomforting.” Id.

In Dawson v. Delaware, 503 U.S. 159, 160, 112

S.Ct. 1093, 1095, 117 L.Ed.2d 309 (1992), the

Supreme Court held that “the First and Fourteenth

Amendments prohibit[ed] the introduction in a

capital sentencing proceeding of the fact that the

defendant was a member of an organization called

the Aryan Brotherhood, where the evidence [had] no

relevance to the issues being decided in the

proceeding.” 503 U.S. at 160, 112 S.Ct. at 1095.

Prior to sentencing, Dawson and the government

agreed to a_ stipulation regarding the Aryan

Brotherhood evidence, which, among other things,

provided that “the Aryan Brotherhood refers to a

white racist prison gang that began in the 1960's in

California.” Id. at 162, 112 S.Ct. at 1096. During

the penalty hearing, the prosecution read the

stipulation and introduced evidence that Dawson (1)

had a tattoo on his hand that read “Aryan

Brotherhood” and (2) referred to himself as

“Abaddon,” which apparently meant “one of Satan’s

disciples.” Id. at 161-63, 112 S.Ct. at 1095-96. The

jury recommended that Dawson be sentenced to

death, and the Supreme Court of Delaware affirmed

the sentence. Id. at 163, 112 S.Ct. at 1096.

The Supreme Court stated in Dawson that

“the Constitution does not erect a per se barrier to

the admission of evidence concerning one’s beliefs

and associations at sentencing simply because those

beliefs and associations are protected by the First

Amendment.” Id. at 165, 112 S.Ct. at 1097. The

Supreme Court noted that its cases had emphasized

that “the sentencing authority has always been free

to consider a wide range of relevant material,” and

“may appropriately conduct an inquiry broad in

scope, largely unlimited either as to the kind of

information he may consider, or the source from

which it may come.” Id. at 164, 112 S.Ct. at 1097

(citations omitted). The Supreme Court noted that it

A-I1

had upheld the consideration of constitutionally

protected material in certain cases, including:

(1) “in a capital sentencing proceeding, of evidence of

racial intolerance and subversive advocacy where

such evidence was relevant to the issues involved”:

and (2) in a non-capital sentencing proceeding, to

impeach a defense witness by showing bias. Id.; see

also Wisconsin v. Mitchell, 508 U.S. 476, 489, 113

S.Ct. 2194, 2201, 124 L.Ed.2d 436 (1993) (explaining

that “[t]he First Amendment .. . does not prohibit

the evidentiary use of speech to establish the

elements of a crime or to prove motive or intent’).

Nonetheless, the Supreme Court determined that,

because the “narrowness of the stipulation left the

Aryan’ Brotherhood evidence totally without

A-12

relevance to Dawson’s sentencing proceeding, .

Dawson’s First Amendment rights were violated by:

the admission of the Aryan Brotherhood evidence in

this case, because the evidence proved nothing more

than Dawson’s abstract beliefs.” Dawson, 503 U.S.

at 165-66, 112 S.Ct. at 1097-98. The Supreme Court

noted that “Delaware might have avoided this

problem if it had presented evidence showing more

than mere abstract beliefs on Dawson’s part, but on

the present record one is left with the feeling that

the Aryan Brotherhood evidence was employed

simply because the jury would find these beliefs

morally reprehensible.” Id. at 167, 112 S.Ct. at 1098.

The district court did not plainly err by

considering Tapanes’s obscene gesture during the

A-13

sentencing phase because the gesture was relevant

to sentencing and was but one of many factors the

court relied upon. The court noted that Tapanes had

initially stated that he did not make any hand

gesture to the USCG officials and had not even

turned around in the direction of the USCG, but he

later stated that, although he did turn around, he

put his hand up to block the light from the USCG

vessel. Thus, in light of his own contradictory

testimony,” as well as the testimonial evidence from

the USCG officer, siemens or not Tapanes made the

hand gesture was relevant to Tapanes’s sentencing

because it reflected upon Tapanes’s history and

characteristics, and, specifically, Tapanes’s lack of

2 In contrast to his previous positions; Tapanes now admits that

he did in fact obscenely gesture the crew of the USCG.

A-14

respect for the law and his propensity to lie. See 18

U.S.C. § 3553(a)(1), (a)(2)(A). Therefore, the court did

not consider Tapanes’s abstract beliefs for the

irrelevant and impermissible purpose of

demonstrating his general moral reprehensibility.

See Dawson, 503 U.S. at 165-66, 112 S.Ct. at 1097-

98. Accordingly, Tapanes’s First Amendment rights

were not violated during sentencing, and there was

no error, much less plain error.

II.

“In reviewing the ultimate sentence imposed

by the district court for reasonableness, we

consider the final sentence, in its entirety, in light

of the § 3553(a) factors.” United States v. Valnor,

451 F.3d 744, 750 (11th Cir. 2006) (citation

A-15

omitted). The party challenging’ the

reasonableness of a sentence “bears the burden of

establishing that the sentence is unreasonable in

the lhght of both [the] record and the factors in

section 3553(a).” United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005).

“In reviewing the reasonableness of a sentence

imposed after conviction, we [normally] review de

novo, as a question of law, whether a _ factor

considered by the district court in sentencing a

defendant is impermissible.” United States v.

Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir.

2008). “A sentence that is based entirely upon an

impermissible factor is unreasonable because such a

sentence does not achieve the purposes of § 3553(a).”

A-16

——

—

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[ —= we 7 —

United States v. Lorenzo, 471 F.3d 1219, 1221 (1th

oe

\ os

oe

Cir. 2006).

The Supreme Court recently clarified the

reasonableness standard as a review for abuse of

discretion. Gall v. United States, 552 U.S. —, 128

S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). Appellate

courts should “take into account the totality of

circumstances, including the extent of a deviation

from the Guidelines range.” Id., 128 S.Ct. at 597.

We will remand for resentencing only if we are “left

with the 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

A-17

+e

Be

or

BY

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.

2008) (quotation marks omitted). Specifically, the

district court must impose a sentence that is both

procedurally and substantively reasonable. Gall,

128 S.Ct. at 597.

When reviewing the _ sentence for

procedural reasonableness, we must

ensure that the district court committed

no significant procedural error, 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-including an

explanation for any deviation from the

Guidelines range.

“In considering the substantive

reasonableness of the sentence, we may not apply a

presumption of unreasonableness where a sentence

is outside of the Guidelines range, and we must

give due deference to the district court’s decision

that the § 3553(a) factors, on a whole, justify the

extent of the variance.” United States v. Livesay,

No. 06-11303, slip op. at 1912 (11th Cir. Apr. 23,

2008) (citations and quotation marks omitted).

However, “Gall makes clear that ‘it also remains

true that the district court’s choice of sentence is

not unfettered.” Id. (citation omitted). “[T]he

district court is obliged to consider all of the §

3553(a) factors, and those factors in turn guide

appellate courts, as they have in the past, in

determining whether a sentence is unreasonable.”

Id. (citations and punctuation marks omitted).

A-19

Moreover, the district court “must consider the

extent of the deviation [from the Guidelines range]

and ensure that the justification is sufficiently

compelling to support the degree of the variance.”

Gall, 128 S.Ct. at 597.

Because we review for substantive

unreasonableness under the “totality of

>? ‘<,

circumstances,” “a district oui need not discuss

each Section 3553(a) factor, although where the

judge imposes a sentence outside the Guidelines, the

judge will explain why he has done so.” Pugh, 515

F.3d at 1191 n.8 (internal citations and punctuation

marks omitted). “[A] district court’s unjustified

reliance on any one Section 3553(a) factor may be a

symptom of an unreasonable sentence.” Id. at 1191.

However, such a_ sentence is not necessarily

unreasonable. See Gall, 128 S.Ct. at 602 (holding

that a district court did not commit reversible error

simply because it “attached great weight” to one

factor). “The weight to be accorded any given §

3553(a) factor is a matter committed to the sound

discretion of the district court.” United States v.

Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotation

omitted).

The § 3553(a) factors include: (1) the nature

and circumstances of the offense and the history and

characteristics of the defendant; (2) the need to

reflect the seriousness of the offense, to afford

adequate deterrence, to promote respect for the law,

to provide just punishment for the offense, to protect

the public, and to provide the defendant with needed

educational or vocational training or medical care;

(3) the kinds of sentences available; (4) the advisory

guidelines range; (5) pertinent Sentencing

Commission policy statements; (6) the need to avoid

unwarranted sentencing disparities; and (7) the need

to provide restitution to victims. 18 U.S.C. §

3553(a)(1)-(7).

Initially, Tapanes argues for the first time on

appeal that the district court procedurally erred

when it considered an impermissible factor (his hand

gesture) in sentencing him. As discussed above, the

gesture was relevant to the § 3553(a) factors. Thus,

the court did not plainly err by considering that

factor.

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Tapanes’s assertion in his brief that his

sentence is per _se unreasonable because the

court failed to follow procedural safeguards akin

to those when a sentencing court applies an

upward departure is misplaced and without

legal support. See Gall, 128 S.Ct. at 597

(defining the procedural safeguards a court must

conduct during sentencing). In addition,

although it may be true, as Tapanes asserts in

his brief, that the court could have applied an

enhancement under § 3C1.2 for’ reckless

endangerment during flight, it is also true that

the court could consider the conduct

independently while conducting its § 3553(a)

analysis. See United States v. Amedeo, 487 F.3d

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823, 833-34 (1lth Cir.), cert. denied, 128 S.Ct.

671 (2007) (holding that “it was reasonable for

the district court to rely on certain aspects of

Amedeo’s conduct, particularly his abuse of the

attorney-client relationship, that it had already

considered in imposing an enhancement” in

making its determination of whether to impose

an upward variance in light of the factors set

forth in § 3553(a)).

Further, contrary to Tapanes’s assertions

otherwise, the record does not support Tapanes’s

contention that the court: unjustifiably relied upon

“ex one § 3553(a) factor, and, although the court

may have attached great weight to Tapanes’s

conduct surrounding the chase, it does not follow

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-that his sentence was necessarily unreasonable. See

Gall, 128 S.Ct. at 602; Clay, 483 F.3d at 743; Pugh,

515 F.3d at 1191. The district court adequately

explained, based upon the § 3553(a) factors and the

circumstances in this case, why it varied above the

Guidelines range. See Livesay, No. 06-11303, slip

op. at 1912; Pugh, 515 F.3d at 1191 n.8. Moreover,

in light of the dangerous situation that Tapanes

created during the lengthy chase, as well as

Tapanes’s demonstrated disrespect for the law, the

court's reasons were sufficiently compelling to

support the degree of upward variance. See Gall,

128 S.Ct. at 597.

Thus, Tapanes has not shown that his 60-

month sentence, which did not exceed the statutory

maximum of 5 - years’ imprisonment, was

unreasonable in light of both the record and the §

3553(a) factors. See Talley, 431 F.3d at 788; United

States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.

2005) (comparing, as one. indication of

reasonableness, the actual prison term imposed

against the statutory maximum); see also 18 U.S.C. §

2237(b).

In light of the foregoing, the district court did

not plainly err by considering Tapanes’s obscene

hand gesture along with all of the surrounding

circumstances of the chase during the sentencing

phase. Tapanes created a dangerous situation,

showed disrespect for the law and for the safety of all

concerned. He then falsely denied what he had done

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and attempted to deceive the court. The sentence

imposed is not unreasonable.

Accordingly, Tapanes's sentence is

AFFIRMED.

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