Case: 13-10626 Date Filed: 08/07/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10626
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00253-WBH-JSA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCELINO GONZALES-ALVARADO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 7, 2013)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Case: 13-10626 Date Filed: 08/07/2013 Page: 2 of 4
After pleading guilty, Marcelino Gonzales-Alvarado appeals his 21-month
sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and
(b)(2). On appeal, Gonzales-Alvarado argues that his 21-month sentence, below
his advisory guidelines range of 24 to 30 months’ imprisonment, is substantively
unreasonable. After review, we affirm.
We review the reasonableness of a sentence under the deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). We look first at whether the district court committed any significant
procedural error and then at whether the sentence is substantively unreasonable
under the totality of the circumstances. United States v. Pugh, 515 F.3d 1179,
1190 (11th Cir. 2008). 1
The abuse of discretion standard “allows a range of choice for the district
court, so long as that choice does not constitute a clear error of judgment.” United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal quotation
marks omitted). The party challenging the sentence bears the burden of proving
the sentence is unreasonable in light of the record and the 18 U.S.C. § 3553(a)
factors. Pugh, 515 F.3d at 1190.2
1
Gonzales-Alvarado does not contend that his sentence is procedurally unreasonable or
point to any procedural error at his sentencing.
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need 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
2
Case: 13-10626 Date Filed: 08/07/2013 Page: 3 of 4
Gonzales-Alvarado contends the district court should have imposed a bigger
downward variance because, although the guidelines calculations were technically
correct, Gonzales-Alvarado’s criminal history category IV overstated his criminal
past and the eight-level aggravated-felon enhancement, pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C), overstated the seriousness of his offense.
Gonzales-Alvarado has not shown that his 21-month sentence is
substantively unreasonable. When Gonzales-Alvarado was deported to Mexico in
November 1999, he already had three battery convictions and convictions for
leaving the scene of an accident and driving without a license. Sometime in either
late 1999 or 2000, Gonzales-Alvarado reentered the United States. At that time,
Gonzales-Alvarado was still on probation for his most recent battery conviction.
Gonzales-Alvarado does not dispute that each of the three battery convictions
qualified as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C) or that his
prior convictions and probationary status resulted in a criminal history score of 7
and a criminal history category of IV.
Moreover, at sentencing, the district court considered Gonzales-Alvarado’s
arguments that his criminal history category and total offense level did not
accurately reflect his actual criminal history and the seriousness of his current
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
3
Case: 13-10626 Date Filed: 08/07/2013 Page: 4 of 4
reentry offense. Indeed, the district court paid particular attention to Gonzales-
Alvarado’s contention that the two additional criminal history points imposed due
to his current probationary status were unfair and imposed a 21-month sentence,
within the range it determined would have applied (18 to 24 months) if those two
criminal history points were omitted and Gonzales-Alvarado had only a criminal
history category of III.
However, the district court also stressed the need for the sentence to deter
Gonzales-Alvarado from reentering the country again and to deter others from
committing the same offense. Clearly, the district court considered Gonzales-
Alvarado’s mitigation arguments and gave Gonzales-Alvarado a three-month
downward variance based upon them, but was unwilling to vary further downward
given the need for deterrence. We cannot say the district court’s refusal to vary
further downward was an abuse of discretion.
Finally, Gonzales-Alvarado cites two cases in which this Court affirmed
larger downward variances than the one sought by Gonzales-Alvarado at
sentencing. These cases bear no resemblance to the facts of Gonzales-Alvarado’s
case, and do not support a finding that Gonzales-Alvarado’s sentence is
unreasonable. Rather, these cases merely demonstrate that the reasonableness of a
particular sentence turns on the totality of the circumstances presented in that case.
AFFIRMED.
4