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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10337
Non-Argument Calendar
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D.C. Docket No. 0:18-cr-60244-BB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD RIVERA-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 16, 2019)
Before WILSON, NEWSOM and HULL, Circuit Judges.
PER CURIAM:
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Donald Rivera-Lopez appeals his 30-month sentence for illegally reentering
the United States after previously being removed. He argues that his sentence was
substantively unreasonable because the district court failed to adequately consider
his political asylum claim as a mitigating factor and because the court should have
given that claim more weight. Finding no abuse of discretion, we affirm.
I
Rivera-Lopez pleaded guilty to one count of being found in the United
States after having been previously removed, in violation of 8 U.S.C. § 1326(a) and
(b)(2). Rivera-Lopez, a Nicaraguan national, has been removed from the United
States on three prior occasions. He also has three prior felony convictions for grant
theft. At his sentencing hearing, Rivera-Lopez sought a variance from the
recommended Sentencing Guidelines range of 27 to 33 months’ imprisonment. He
argued that he had been forced to leave Nicaragua due to political strife and was
therefore seeking asylum. An asylum officer made an initial determination that
Rivera-Lopez presented a reasonable and credible fear of persecution if he returned
to Nicaragua—Rivera-Lopez consequently requested a reduced sentence of 18
months’ imprisonment.
The government recommended a sentence of 30 months’ imprisonment, in
the middle of the Sentencing Guidelines range. The district court then imposed the
government’s requested sentence, citing Rivera-Lopez’s criminal history and
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illegal entries as justification, while also acknowledging the merits of his potential
claim for asylum. Rivera-Lopez now appeals that sentence as substantively
unreasonable, arguing that the district court inadequately considered his asylum
claim.
II
We review the reasonableness of a sentence “under a deferential abuse-of-
discretion standard.” Gall v. United States,
552 U.S. 38, 41 (2007). The party
challenging the sentence “bears the burden of establishing that the sentence is
unreasonable in the light of both that record and the factors in section 3553(a).”
United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005) (per curiam), abrogated
on other grounds by Rita v. United States,
551 U.S. 338 (2007).
The district court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need “to reflect the seriousness of the offense, to promote respect for the law, .
. . to provide just punishment for the offense,” deter criminal conduct, and protect
the public from the defendant’s future criminal conduct. 18 U.S.C.
§ 3553(a)(2)(A)–(C). Additionally, the court must consider “the nature and
circumstances of the offense and the history and characteristics of the defendant,”
as well as the applicable Sentencing Guidelines range.
Id. § 3553(a)(1), (4). When
a district court considers the § 3553(a) factors, it need not “state on the record that
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it has explicitly considered each” factor or discuss the role each played in the
sentencing decision.
Talley, 431 F.3d at 786 (citation omitted). Rather, we have
held that “an acknowledgment by the district court that it has considered the
defendant’s arguments and the factors in section 3553(a) is sufficient.”
Id.
The weight given to any § 3553(a) factor is “committed to the sound
discretion of the district court.” United States v. Clay,
483 F.3d 739, 743 (11th Cir.
2007) (citation omitted). We will remand for resentencing only if we are
definitively and firmly convinced “that the district court committed a clear error of
judgment” and reached a sentence lying “outside the range of reasonable sentences
dictated by the facts of the case.”
Id. (citation omitted). “A district court abuses its
discretion when it (1) fails to afford consideration to relevant factors that were due
significant weight, (2) gives significant weight to an improper 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) (quoting United
States v. Campa,
459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)).
The sentencing court’s findings of fact “may be based on evidence heard
during trial, facts admitted by a defendant’s plea of guilty, undisputed statements
in the presentence report, or evidence presented at the sentencing hearing.” United
States v. Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989). While “we do not
automatically presume a sentence within the guidelines range is reasonable, we”
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generally expect such a sentence to be so. United States v. Hunt,
526 F.3d 739,
746 (11th Cir. 2008) (quoting
Talley, 431 F.3d at 788).
Here, the district court did not abuse its discretion by imposing a 30-month
sentence. The sentence was in the middle of the Sentencing Guidelines range, and
the district court adequately considered and weighed Rivera-Lopez’s potential
political asylum claim, his prior illegal reentries and felony convictions, and other
relevant factors in choosing the sentence. The district court had the discretion to
give greater weight to Rivera-Lopez’s reentries and convictions than to his asylum
claim. The sentence, therefore, was substantively reasonable.
AFFIRMED.
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