United States v. Pedro Mendoza

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12020 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 16, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00477-JEC-CCH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO MENDOZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 16, 2011)
Before EDMONDSON, PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Pedro Mendoza appeals his 46-month sentence, imposed after he pleaded
guilty to illegally reentering the United States after deportation in violation of
8 U.S.C. § 1326(a). Mendoza argues that his sentence is substantively
unreasonable because he has been deported only once, he remained out of the
country for an extended period of time, he committed no new crime, and he is
unlikely to return to the United States because he was able to earn a living in
Mexico. Mendoza also argues his sentence is disproportionate to the mean
sentence imposed both nationally and in the Northern District of Georgia for
illegal reentry of a deported alien.
We review a final sentence imposed by the district court for reasonableness.
United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). “The review
for substantive unreasonableness1 involves examining the totality of the
circumstances, including an inquiry into whether the statutory factors in § 3553(a)
support the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2006), cert. denied 129 S.Ct. 2848 (2009). The sentencing court must
impose a sentence “sufficient, but not greater than necessary,” to comply with the
purposes of sentencing set forth in the statute. 18 U.S.C. § 3553(a)(2). We
1
Appellant challenges only the substantive, and not the procedural, reasonableness
of his sentence.
2
reverse only if “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.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en
banc) (quotation omitted).
Mendoza fails to demonstrate that his sentence is substantively
unreasonable in light of the record and the § 3553(a) factors. As an initial matter,
the 46-month sentence imposed was the prescribed minimum in the applicable
guideline range of 46 to 57 months, and we ordinarily expect that a Guideline
sentence is reasonable. See United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005).
Mendoza’s argument that he is not a risk to reenter the United States is
unpersuasive. That he has a farm and was earning a living in Mexico did not deter
him from the reentry for which he pleaded guilty in this matter. Mendoza provides
no evidence that he is less likely now to attempt to illegally return to the United
States then he was when he violated the law in 2009. The district judge rightly
concluded that deterrence was a meaningful consideration in spite of Mendoza’s
established life in Mexico.
Mendoza claims that this sentence was disproportionally harsh, far
3
exceeding the average sentence given for an offense under § 3553(a). However,
Mendoza cites only general sentencing statistics. He fails to identify a single
similarly situated defendant, particularly one who had been deported for
committing a serious drug-related offense, who received a shorter sentence. Thus,
Mendoza fails to show an unwarranted disparity that renders his sentence
unreasonable.2 Because Mendoza’s sentence is supported by the record and the
§ 3553(a) factors, the district court did not abuse its discretion by sentencing
Mendoza to 46 months’ imprisonment. Accordingly, Mendoza’s sentence is
affirmed.
AFFIRMED.3
2
Mendoza’s remaining arguments demand little discussion. He claims that the
district court should have taken note of the fact that he did not try to reenter between 2005 and
2009. However, Mendoza was on probation during this period of time, likely deterring him from
violating § 1326(a).
Mendoza also claims that the district court failed to take into account the fact that he
committed no new crime. He does not explain why this factor is not adequately accounted for by
the Guidelines, nor does he offer any authority for this as a factor that the district court should
have considered.
3
Appellant’s request for oral argument is denied as moot.
4