United States v. Reynaldo Garcia

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14222 MAY 6, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 08-80006-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYNALDO GARCIA,
a.k.a. Alfredo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 6, 2009)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Reynaldo Garcia appeals his 262-month sentence for conspiracy
to possess with intent to distribute at least 500 grams of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. On appeal, Garcia argues that his sentence
is unreasonable because the court improperly used Garcia’s alienage as a factor and
failed to properly weigh the factors listed in 18 U.S.C. § 3553(a). Specifically,
Garcia argues that several factors in this case warranted a substantial downward
variance to the statutory minimum sentence of 120 months, including: (1) Garcia’s
difficult childhood, (2) the fact that Garcia will be deported for this conviction,
(3) a sentence at the level set by the career offender guideline will not promote
respect for the law, (4) his prior punishments were minor in comparison to his
punishment for this offense, and (5) his criminal history is overstated.
We review the sentence imposed by a district court for reasonableness.
United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765, 160 L. Ed. 2d 621(2005). First, we must 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.” Gall v. United States, 552 U.S. ___,
___, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). If the district court’s
sentencing decision is procedurally sound, we then review the substantive
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reasonableness of the sentence for abuse of discretion. Id. A sentence may be
substantively unreasonable if it “does not achieve the purposes of sentencing stated
in § 3553(a),” if it is based on an impermissible factor, or if “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.” United States v. Pugh, 515 F.3d 1179, 1191-1192 (11th Cir.
2008) (citations omitted).
Pursuant to § 3553(a), the sentencing court shall impose a sentence
sufficient, but not greater than necessary, to (1) reflect the seriousness of the
offense, (2) promote respect for the law, (3) provide just punishment for the
offense, (4) deter criminal conduct, (5) protect the public from future crimes of the
defendant, and (6) provide the defendant with needed educational or vocational
training or medical care. 18 U.S.C. § 3553(a)(2). The sentencing court must also
consider the following factors in determining a particular sentence: (1) the nature
and circumstances of the offense and the history and characteristics of the
defendant; (2) the kinds of sentences available; (3) the guidelines range; (4) the
pertinent policy statements of the Sentencing Commission; (5) the need to avoid
unwarranted sentencing disparities; and (6) the need to provide restitution to
victims. 18 U.S.C. § 3553(a)(1), (3)-(7).
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The appellant has the burden of establishing that the sentence is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). While a sentence within the guideline
range is not per se reasonable, this Court ordinarily expects such a sentence to be
reasonable. Id.We conclude from the record that Garcia’s 262-month sentence is reasonable
because the district court did not consider an impermissible factor, properly
weighed the factors set forth in § 3553(a), and sentenced Garcia at the low end of
the guideline range. Accordingly, we affirm Garcia’s sentence.
AFFIRMED.
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