# Petition for Writ of Certiorari — Tapanes v. United States (No. 08-387) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0715%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text 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? li TABLE OF CONTENTS QUESTION PRESENTED FOR REVIEW............. li Rees OF CONTENTS. .................s-c00ccesessescseesestsees lil Memes CPE FAUT PEEVE LISS ......05scccccccccosesssssesveoness lV I i. Gop tasavsedcncaporoinncierstesyraicusalan 1 I oo ioic? ‘<, 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. A-22 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 A-23 823, 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 A-24 -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 A-26 and attempted to deceive the court. The sentence imposed is not unreasonable. Accordingly, Tapanes's sentence is AFFIRMED. A-27 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0715%3A1. Public record. Not legal advice.