United States v. Gonzalez-Visoso , 445 F. App'x 246 ( 2011 )


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  •                                                                    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 11-11391           OCTOBER 25, 2011
    JOHN LEY
    Non-Argument Calendar           CLERK
    ________________________
    D.C. Docket No. 9:10-cr-80172-KLR-1
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellee,
    versus
    BERNARDO GONZALEZ-VISOSO,
    a.k.a. Jose Rios,
    a.k.a. Bernardo Gonzalezbisoso,
    llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (October 25, 2011)
    Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Bernardo Gonzalez-Visoso appeals his 24-month sentence for illegal reentry
    after deportation, in violation of 
    8 U.S.C. § 1326
    (a) and (b)(2). He argues that his
    24-month within-guidelines sentence is procedurally and substantively
    unreasonable.1 He asserts that it is procedurally unreasonable because the district
    court improperly treated the guidelines as presumptively reasonable and did not
    giving meaningful consideration to his mitigating arguments or the other 
    18 U.S.C. § 3553
    (a) factors, which was shown by the court’s failure to express its
    reasons for the sentence it imposed. The sentence is substantively unreasonable
    because the district court placed unjustified reliance upon one factor, the guideline
    range, instead of giving adequate weight to the length of time since his
    aggravating felony drug trafficking convictions, the small amount of drugs
    involved in those convictions, and his law-abiding conduct since those offenses.
    “[A] sentence may be reviewed for procedural or substantive
    unreasonableness.” United States v. Ellisor, 
    522 F.3d 1255
    , 1273 (11th Cir. 2008).
    We review both the procedural and substantive reasonableness of a sentence for an
    abuse of discretion. 
    Id.
     at 1273 n.25.
    1
    Gonzalez-Visoso also raises the argument that the district court violated his rights under
    the Fifth and Sixth Amendments by imposing a guidelines enhancement based upon his prior
    drug trafficking convictions that were not charged in the indictment nor proved to a jury beyond
    a reasonable doubt. However, we have previously rejected this argument in other cases, and,
    therefore, it is foreclosed by our binding precedent. See United States v. Orduno-Mireles, 
    405 F.3d 960
    , 962 (11th Cir. 2005).
    2
    In reviewing whether a sentence is reasonable, we must ensure, first, that
    the district court did not commit a 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.”
    Gall v. United States, 
    552 U.S. 38
    , 51, 
    128 S.Ct. 586
    , 597, 
    169 L.Ed.2d 445
    (2007). “[T]he sentencing judge should set forth enough to satisfy the appellate
    court that he has considered the parties’ arguments and has a reasoned basis for
    exercising his own legal decisionmaking authority.” United States v. Agbai, 
    497 F.3d 1226
    , 1230 (11th Cir. 2007) (citation and quotation omitted). However, the
    district court need not discuss or explicitly state on the record each § 3553(a)
    factor. United States v. Scott, 
    426 F.3d 1324
    , 1329 (11th Cir. 2005). “Rather, an
    acknowledgment by the district judge that he or she has considered the § 3553(a)
    factors will suffice.” United States v. Amedeo, 
    487 F.3d 823
    , 832 (11th Cir. 2007).
    We must then determine whether the sentence is substantively reasonable in
    light of the § 3553(a) factors. Gall, 
    552 U.S. at 51
    , 
    128 S.Ct. at 597
    . The
    sentencing court shall impose a sentence “sufficient, but not greater than
    necessary” to comply with the purposes of sentencing set forth in § 3553(a)(2). 
    18 U.S.C. § 3553
    (a)(2). The court must also consider the nature and circumstances of
    3
    the offense, the history and characteristics of the defendant, the kinds of sentences
    available, the applicable guideline range, the pertinent policy statements of the
    Sentencing Commission, the need to avoid unwarranted sentencing disparities, and
    the need to provide restitution to victims. 
    18 U.S.C. § 3553
    (a)(1), (3)-(7).
    “The review for substantive unreasonableness involves examining the
    totality of the circumstances, including an inquiry into whether the statutory
    factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,
    
    550 F.3d 1319
    , 1324 (11th Cir. 2008). “[T]he party who challenges the sentence
    bears the burden of establishing that the sentence is unreasonable in the light of
    both [the] record and the factors in section 3553(a).” United States v. Talley, 
    431 F.3d 784
    , 788 (11th Cir. 2005). We vacate a sentence only if “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 States v. Irey,
    
    612 F.3d 1160
    , 1190 (11th Cir. 2010) (en banc), cert. denied, 
    131 S.Ct. 1813
    (2011) (quotation omitted). The reasonableness of a sentence may be indicated
    when the sentence imposed is well below the statutory maximum sentence. See
    Gonzalez, 
    550 F.3d at 1324
    . Furthermore, “when the district court imposes a
    4
    sentence within the advisory Guidelines range, we ordinarily will expect that
    choice to be a reasonable one.” Talley, 
    431 F.3d at 788
    .
    Gonzalez-Visoso’s sentence is both procedurally and substantively
    reasonable. It is procedurally reasonable because the district court adequately
    expressed the factors it took into account by stating that it considered the
    statements of both parties, the presentence investigation report, and the § 3553(a)
    factors. The sentence is substantively reasonable because it is well below the
    statutory maximum, within the advisory guidelines range, and not greater than
    necessary to reflect Gonzalez-Visoso’s criminal history. Since the sentence is
    procedurally and substantively reasonable, the district court did not err in
    sentencing Gonzalez-Visoso to 24 months’ imprisonment. Accordingly, we affirm.
    AFFIRMED.
    5