United States v. Adrian A. Hernandez ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14893 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 13, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:10-cr-10007-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
ADRIAN A. HERNANDEZ,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 13, 2011)
Before CARNES, MARTIN, and KRAVITCH, Circuit Judges.
PER CURIAM:
Adrian Hernandez appeals his 41-month sentence, imposed after he pleaded
guilty to one count of reentry of a deported alien, in violation of 8 U.S.C. §§ 1326(a), (b)(1). Hernandez challenges the reasonableness of his sentence. After
review, we affirm.
I.
“We review sentencing decisions only for abuse of discretion, and we use a
two-step process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).
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, 128 S. Ct.
586, 597 (2007)). If we conclude that no procedural error occurred, “the second
step is to review the sentence’s ‘substantive reasonableness’ under the totality of
the circumstances, including ‘the extent of any variance from the Guidelines
range.’” Id. (quoting Gall, 552 U.S. at 51, 128 S. Ct. at 597). “If the district
court’s sentence is within the guidelines range, we expect that the sentence is
reasonable.” United States v. Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir.
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2010); see also United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)
(“Although we do not automatically presume a sentence within the guidelines
range is reasonable, we ‘ordinarily . . . expect a sentence within the Guidelines
range to be reasonable.’” (quoting United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005)).
As for procedural error, Hernandez contends that the district court failed to
consider the § 3553(a) factors. His argument lacks merit. In imposing its
sentence, the district court stated that it had “considered the statements of all [the]
parties [and] the advisory guidelines and the statutory factors.” The district
court’s acknowledgment that it had considered the § 3553(a) factors “alone is
sufficient in post-Booker sentences.” United States v. Scott, 426 F.3d 1324, 1330
(11th Cir. 2005). No procedural error occurred.
Hernandez also challenges the substantive reasonableness of his 41-month
sentence, which was at the lowest end of his advisory Guidelines range of 41 to 51
months imprisonment. He argues that his sentence is substantively unreasonable
because his Guidelines range is too high, and the district court failed to take into
account his cultural assimilation in this country and his age when he committed
the criminal offense that resulted in his deportation. However, we see no error in
the district court’s imposition of a low-end guideline sentence for Hernandez. See
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United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (We may
vacate a defendant’s sentence as substantively unreasonable 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.”
(quotation marks omitted)). Accordingly, we affirm Hernandez’s sentence.
AFFIRMED.
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