USCA11 Case: 22-12631 Document: 46-1 Date Filed: 05/11/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12631
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO PEREZ-PINA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cr-14020-AMC-1
____________________
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2 Opinion of the Court 22-12631
Before NEWSOM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Ernesto Perez-Pina, a Mexican citizen, appeals following his
conviction and 18-month sentence for one count of unlawful
reentry of a previously removed alien. He had previously been re-
moved from the United States four times and had been charged and
convicted with misdemeanor improper entry by an alien three
times.
On appeal, Perez-Pina challenges his above-guideline-range
sentence two ways. Procedurally, he asserts that the district court
offered an insufficient explanation for its upward variance. Sub-
stantively, he contends that the district court put unreasonable
weight on his prior reentry offenses and that a within-guideline-
range sentence would have satisfied the
18 U.S.C. § 3553(a) factors
because the guideline calculations already accounted for those of-
fenses.
We review a sentence imposed after a variance under a def-
erential abuse-of-discretion standard. See Gall v. United States,
552 U.S. 38, 51 (2007).
“To be upheld on appeal, a sentence must be both procedur-
ally and substantively reasonable.” United States v. Green,
981
F.3d 945, 953 (11th Cir. 2020). Procedural errors include failing to
calculate (or improperly calculating) the guideline range, treating
the guidelines as mandatory, failing to consider the § 3553(a)
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22-12631 Opinion of the Court 3
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an ex-
planation for any deviation from the guideline range. See United
States v. Trailer,
827 F.3d 933, 935–36 (11th Cir. 2016) (per curiam).
The district court must impose a sentence “sufficient, but
not greater than necessary” to comply with the purposes of
18 U.S.C. § 3553(a)(2).
18 U.S.C. § 3553(a). These purposes include
the need for a sentence to reflect the seriousness of the offense,
promote respect for the law, provide just punishment, deter crim-
inal conduct, and protect the public from future criminal conduct.
Id. § 3553(a)(2). Additional considerations include the nature and
circumstances of the offense, the history and characteristics of the
defendant, the applicable guideline range, the need to avoid unwar-
ranted sentence disparities among similarly situated defendants,
and the pertinent policy statements of the Sentencing Commission.
Id. § 3553(a). The weight due each § 3553(a) factor lies within the
district court’s sound discretion, and we will not substitute our
judgment for that of the district court. United States v. Joseph,
978
F.3d 1251, 1266 (11th Cir. 2020). However, a district court can
abuse its discretion when it (1) fails to consider relevant factors that
were due significant weight, (2) gives significant weight to an im-
proper or irrelevant factor, or (3) commits a clear error of judgment
by balancing the proper factors unreasonably. United States v.
Kuhlman,
711 F.3d 1321, 1326–27 (11th Cir. 2013). Nevertheless, a
district court may reasonably attach great weight to a single factor.
Id. at 1327.
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4 Opinion of the Court 22-12631
Upward variances are imposed based upon the § 3553(a) fac-
tors. See, e.g., United States v. Overstreet,
713 F.3d 627,
637–38 (11th Cir. 2013). A major variance requires a more signifi-
cant justification than a minor variance—the requirement is that
the justification be “sufficiently compelling to support the degree
of the variance.” United States v. Irey,
612 F.3d 1160, 1196 (11th
Cir. 2010) (en banc) (quoting Gall,
552 U.S. at 50). The appellate
courts may consider the extent of the variance but must give due
deference to the district court’s decision that the § 3553(a) factors
justify the extent of the variance. Gall,
552 U.S. at 51. While a
sufficiently compelling justification for the variance must exist, the
district court does not have to provide an extraordinary justifica-
tion for the variance.
Id. at 47.
Perez-Pina claims that the district court’s explanation for the
upward variance—the need for deterrence and Perez-Pina’s re-
peated reentry offenses 1—was insufficient. Perez-Pina seems to ar-
gue that because these offenses were already incorporated into the
guidelines, they cannot serve as the basis for a variance. But our
precedents say otherwise: The district court may impose a
1 In the district court’s words: “I would note in addition, those prior convic-
tions, they escalated in punishment from 30 days to 60 days and then to 120
days; again, the message obviously wasn’t sufficient to deter more illegal reen-
tries as indicated in the PSI. So for those reasons, in light of the need to pro-
mote the respect for the law, to provide just punishment, and to specifically
deter this defendant from continuing to violate the law, the Court believes
under the 3553(a) factors that an upward variance is warranted and quite rea-
sonable in this case, based on a review of the full record.” Doc. 46 at 10–11.
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22-12631 Opinion of the Court 5
variance if it concludes that the guideline range—which incorpo-
rates the defendant’s criminal history—was insufficient in light of
that same criminal history. United States v. Sanchez,
586 F.3d 918,
936 (11th Cir. 2009); United States v. Osorio-Moreno,
814 F.3d
1282, 1288 (11th Cir. 2016); see also Overstreet,
713 F.3d at 639
(“[A] district court can rely on factors in imposing a variance that it
had already considered in imposing [a guideline] enhancement.”
(alteration in original)). We have explicitly stated that “[d]istrict
courts have broad leeway in deciding how much weight to give to
prior crimes the defendant has committed.” United States v.
Rosales-Bruno,
789 F.3d 1249, 1261 (11th Cir. 2015).
Substantively, the district court did not abuse its discretion
by putting weight on Perez-Pina’s criminal history due to his mul-
tiple reentry offenses and his repeated prior reentries.
18 U.S.C.
§ 3553(a)(1); Overstreet,
713 F.3d at 637–38. Similarly, it reasona-
bly concluded that his record of continuing to reoffend, even with
increasing punishment, meant that a within-range sentence would
not adequately deter more illegal reentries, promote respect for the
law, or provide just punishment. See Sanchez,
586 F.3d at 936.
Further, district courts have broad leeway in deciding how much
weight to give to prior crimes the defendant has committed. See
Rosales Bruno,
789 F.3d at 1261. Additionally, even if this Court
would consider a different sentence to be more appropriate, it still
will not set aside a sentence selected by the district court absent
unreasonableness. See Irey,
612 F.3d at 1191. Finally, Perez-Pina’s
18-month sentence is below the two-year or 24-month statutory
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6 Opinion of the Court 22-12631
maximum, which also indicates reasonableness. See United States
v. Baldwin,
774 F.3d 711, 732 (11th Cir. 2014). Therefore, we af-
firm.
AFFIRMED.
