United States v. Pedro Guardado-Hernandez ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15941 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-00250-ODE-JFK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
PEDRO GUARDADO-HERNANDEZ,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 22, 2011)
Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Pedro Guardado-Hernandez appeals his 41-month sentence, imposed after he
pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a),
(b)(2). On appeal, Guardado-Hernandez argues that his sentence was substantively
unreasonable in light of the sentencing goals of 18 U.S.C. § 3553(a) because his
criminal history consisted of only one drug offense, which he committed in 2003.
After thorough review, we affirm.
We review the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,
351 (2007)).
In reviewing sentences for reasonableness, we typically perform two steps. Id.
at 1190. First, we “‘ensure that the district court committed no 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 -- including an explanation for any deviation from the Guidelines
range.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
2
If we conclude that the district court did not procedurally err, we must consider
the “‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Id.(quoting Gall, 552 U.S. at 51). This review is “deferential,” requiring us to determine
“whether the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). “[W]e will not second guess the weight (or lack thereof) that the
[district court] accorded to a given factor . . . as long as the sentence ultimately
imposed is reasonable in light of all the circumstances presented.” United States v.
Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis
omitted), cert. denied, ___ S.Ct. ___ (2011). We will “vacate the sentence if, but only
if, we are 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.”
See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation
omitted), cert. denied, 131 S. Ct. 1813 (2011). “The party challenging the sentence
bears the burden to show it is unreasonable in light of the record and the § 3553(a)
factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010), cert. denied,
131 S.Ct. 674 (2010).
3
Although we do not automatically presume a sentence within the guideline
range is reasonable, we ordinarily expect such a sentence to be reasonable. United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence imposed well below
the statutory maximum is another indicator of a reasonable sentence. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
In this case, Guardado-Hernandez has not demonstrated that his sentence was
substantively unreasonable in light of the record and the § 3553(a) factors.2 His
41-month sentence was well below the statutory maximum sentence of 20 years’
imprisonment, which indicates that it was a reasonable sentence. See id. The
sentence, moreover, met the goals encompassed within § 3553(a).
Guardado-Hernandez illegally reentered the United States less than a year after he
was deported. He was still on supervised release following his drug conviction when
he illegally reentered this country. Considering his criminal history and disregard for
the criminal and immigration laws of the United States, a 41-month sentence was
necessary to promote respect for the law, provide just punishment, deter
Guardado-Hernandez from further criminal activity, and protect the public. The
below-guideline sentence indicates that the court did consider Guardado-Hernandez’s
history and characteristics, and we will not re-weigh the factors because the ultimate
2
Guardado-Hernandez has not argued that his sentence was procedurally unreasonable.
4
sentence was reasonable. See Snipes, 611 F.3d at 872. Accordingly, we affirm this
sentence as reasonable.
AFFIRMED.
5