United States v. Marco Vado

USCA11 Case: 25-13172 Document: 34-1 Date Filed: 07/27/2026 Page: 1 of 6

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________ No. 25-13172 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus MARCO ORLANDO VADO,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:23-cr-60244-PCH-1 ____________________

Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

Marco Vado appeals his sentence of 60 months’ imprison- ment for illegal re-entry into the United States after being previ- ously deported. He argues that his sentence was procedurally un- reasonable because the district court did not adequately explain the upward variance it imposed, as required by 18 U.S.C. § 3553(c)(2). He also maintains that his sentence was substantively unreasonable because of the district court’s emphasis on his understated past criminal conduct.

I

In reviewing the reasonableness of a sentence, we first con- sider whether the district court committed any significant proce- dural error. See Gall v. United States, 552 U.S. 38, 51 (2007). When reviewing for procedural reasonableness, we ordinarily consider le- gal issues de novo and reviews factual findings for clear error. See United States v Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). But if the district court affords the defendant an opportunity to object af- ter the imposition of sentence, and the defendant fails to do so, his arguments on appeal are generally reviewed for plain error only. See United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). Under the plain-error standard, the defendant must show that (1) an error occurred; (2) the error was plain; and (3) the error affected his substantial rights. If he does so, we should exercise our discre- tion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See Rosales-Mireles v. United States, 585 U.S. 129, 135 (2018); United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007).

A sentence may be procedurally unreasonable if the district court committed a significant procedural error, such as failing to 25-13172 Opinion of the Court 3 consider the § 3553(a) factors or failing to adequately explain its chosen sentence. See United States v. Harris, 964 F.3d 986, 988 (11th Cir. 2020) (citing Gall, 552 U.S. at 51). A district court’s unjustified reliance on a single factor may be a symptom of an unreasonable sentence. See United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). Although the district court must consider all of the § 3553(a) factors, the weight it places on any single factor is left to its sole discretion. See United States v. Butler, 39 F.4th 1349, 1355 (11th Cir. 2022). When explaining the chosen sentence, the court need only give enough information to show that it had considered the parties’ arguments and had a reasoned basis for its decision. See United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). The district court must state, with specificity, the reason for the imposition of a sentence outside of the guideline range. See § 3553(c)(2).

Under the Guidelines, a defendant charged with illegal reentry may have his offense level increased if he engaged in crim- inal conduct that results in a conviction after he was ordered re- moved. See U.S.S.G. § 2L1.2(b)(3). A ten-level increase applies if, after being removed the first time, the defendant commits a con- viction for a felony offense other than illegal reentry for which the sentence was greater than five years. See § 2L1.2(b)(3)(A). If the defendant, after removal, commits “any other felony offense” other than illegal reentry, a four-level increase applies. See § 2L1.2(b)(3)(D).

Where the district court has announced that it is going to impose an upward variance, determining that the guideline range was insufficient in light of the defendant’s criminal history and the § 3553(a) factors, the court is not required to discuss the other fac- tors for the sentence to be procedurally reasonable, particularly if the only arguments raised at sentencing involved the defendant’s criminal history. See United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009).

Mr. Vado was in criminal history category III and had an ad- visory sentencing range of 37-46 months. The government re- quested an upward variance to a range of 70-87 months, but the district court varied upward to a 60-month sentence. That consti- tuted an upward variance of 14 months from the top of the advi- sory sentencing range.

The district court did not commit procedural error. Its ex- planation of the sentence was sufficient to explain its decision to impose an upward variance was inadequate. For example, the dis- trict court determined that Mr. Vado’s criminal history category was “understated,” in part because he had been sentenced to pro- bation in state court for the attempted sexual battery of a minor even though there had been actual sexual abuse. See D.E. 40 at 13; D.E. 39 at 6. In addition, Mr. Vado’s conviction for that attempted sexual battery offense constituted a violation of his probation for an earlier cocaine trafficking violation, yet the revocation sentence ran concurrently with other sentences, and that was unusual. See D.E. 40 at 8-9. The district court adequately explained its 14-month upward variance.

25-13172 Opinion of the Court 5

II

After determining whether the district court committed any procedural errors, we determine whether the sentence is substan- tively reasonable under an abuse-of-discretion standard. See United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). It is the appel- lant’s burden to show the sentence is unreasonable in light of the record and the § 3553(a) factors. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (citing United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)). The district court abuses its discre- tion when it “(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an im- proper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (citation omitted).

The proper factors are set out in § 3553(a) and include the history and characteristics of the defendant, the sentencing guide- line range, the need to avoid unwarranted disparities with similar defendants convicted of similar conduct, and the need for the sen- tence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense. See 18 U.S.C. § 3553(a)(1), (a)(2)(A), (a)(4), and (a)(6). The district court need not directly discuss or state each factor, as it is sufficient to acknowledge that the defendant’s argument and the § 3553(a) fac- tors have been considered. See Gonzalez, 550 F.3d at 1324. A sen- tence imposed well below the statutory maximum is an indication of the sentence’s reasonableness. See United States v. Holt, 777 F.3d 1234, 1269 (11th Cir. 2015). The district court is also within its dis- cretion to consider any information related to the defendant’s “background, character, and conduct” in deciding to impose an up- ward variance, including the facts underlying prior conduct. See Tome, 611 F.3d at 1379 (citing 18 U.S.C. § 3661).

Mr. Vado has not shown an abuse of discretion. The 60- month sentence was substantively reasonable because the district court properly weighed Mr. Vado’s criminal history, the argu- ments of the parties, and the § 3553(a) factors in imposing the sen- tence. Cf. United States v. Rosales-Bruno, 789 F.3d 1249, 1256-57, 1278 (11th Cir. 2015) (panel majority agreeing that 87-month sen- tence for illegal re-entry, which constituted a 60-month upward variance, was not an abuse of discretion given the defendant’s ear- lier violent crimes).

III

We affirm Mr. Vado’s sentence.

AFFIRMED.