United States v. Juan Carlos Fernandez , 312 F. App'x 257 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 17, 2009
No. 08-14448 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20893-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS FERNANDEZ,
a.k.a. Chata,
a.k.a. Octavio Serna,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 17, 2009)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Appellant Juan Carlos Fernandez appeals his 132 month sentence for
conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. § 846. The
district court sentenced Fernandez within the guidelines. On appeal, Fernandez
argues that within guideline sentences may produce unjust results and are not per
se reasonable, and a sentence at the low end of the guidelines or at the statutory
minimum of 120 months would have been reasonable in his case. Fernandez
acknowledges that he is an alien and will be subject to removal based on his
aggravated felony conviction. He asserts that his future deportation is significant
because his deportation renders him ineligible for a sentence reduction based on
drug abuse treatment or time served in a community confinement center. He
argues that a sentence of 120 months of imprisonment would have been sufficient
to deter him from future criminal activity, and his sentence is excessive and
substantively unreasonable because it is greater than 120 months’ imprisonment.
“We review the final sentence imposed by the district court for
reasonableness.” United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007).
Recently, the Supreme Court clarified that the reasonableness standard means
review of sentences for abuse of discretion. Gall v. United States, 552 U.S. __,
128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). The district court must impose a
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sentence that is both procedurally and substantively reasonable. Id. at ___, 128 S.
Ct. at 597. We review the substantive reasonableness of the sentence imposed to
determine whether the sentence is supported by the 18 U.S.C. § 3553(a) factors.
United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). 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 promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S.C.
§ 3553(a)).
“[T]here is a range of reasonable sentences from which the district court may
choose.” Id. at 788. Although we do not apply a presumption of reasonableness
to a sentence within the advisory guideline range, we will ordinarily expect such a
sentence to be reasonable. Id. “[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).” Id. The relationship between the
sentence imposed and the statutory maximum informs whether a sentence is
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reasonable. See United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005)
(noting the defendant’s within-guidelines reasonable sentence was one tenth of the
statutory maximum). The weight given to particular sentencing factors is
committed to the sound discretion of the district court. United States v. Clay, 483
F.3d 739, 743 (11th Cir. 2007).
We conclude from the record that Fernandez’s sentence is substantively
reasonable because the district court considered the sentencing factors, including
the guidelines range, the just punishment, and the need to deter future criminal
conduct. Accordingly, we affirm Fernandez’s sentence.
AFFIRMED.
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