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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16601
Non-Argument Calendar
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D. C. Docket No. 1:12-cr-00279-SCJ-RGV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTIAN ESPINOSA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 19, 2013)
Before CARNES, Chief Judge, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Christian Espinosa appeals his 52-month sentence, imposed after he pled
guilty to 1 count of re-entry of a removed alien, in violation of 8 U.S.C. § 1326(a)
and (b)(2). On appeal, Espinosa argues that his sentence was substantively
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unreasonable because the sentence imposed gives too much weight to his single
prior drug conviction. After careful review, we affirm.
We review the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir.2008) (quoting Rita v. United States, 551 U.S. 338,
351 (2007)). In reviewing sentences for reasonableness, we typically perform two
steps. Id. at 1190. 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 (2007)).1
If we conclude that the district court did not procedurally err, we consider
the “‘substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard,’” based on the “‘totality of the circumstances.’” Id. (quoting
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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Gall, 552 U.S. at 51). Applying “deferential” review, we must determine “whether
the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784,
788 (11th Cir.2005). “[W]e will not second guess the weight (or lack thereof) that
the [court] accorded to a given factor ... as long as the sentence ultimately imposed
is reasonable in light of all the circumstances presented.” United States v. Snipes,
611 F.3d 855, 872 (11th Cir.2010) (quotation, alteration and emphasis omitted),
cert. denied, 131 S.Ct. 2962 (2011). We will not reweigh the relevant § 3553(a)
factors, and will not remand for resentencing unless the district court committed a
clear error of judgment in weighing the § 3553(a) factors by imposing a sentence
outside the range of reasonable sentences. United States v. Langston, 590 F.3d
1226, 1237 (11th Cir. 2009). However, a district court’s unjustified reliance upon
any one § 3553(a) factor may be a symptom of an unreasonable sentence. United
States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006).
The party challenging the sentence bears the burden to show it is
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert.
denied, 131 S.Ct. 674 (2010). A sentence imposed well below the statutory
maximum penalty is another indicator of a reasonable sentence. See United States
v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding that the sentence was
reasonable in part because it was well below the statutory maximum).
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When a guidelines provision is not supported by “empirical data and
national experience,” a district court does not abuse its discretion if it concludes
that a within-guidelines sentence is “greater than necessary to achieve § 3553(a)’s
purposes.” Kimbrough v. United States, 552 U.S. 85, 109-10 (2007) (quotation
omitted). But this lack of empirical evidence “is not an independent ground that
compels the invalidation of a guideline.” Snipes, 611 F.3d at 870. It is merely
“one factor” that a district court could consider in exercising its right to depart
from the guidelines. Id.
Double counting is impermissible when “one part of the Guidelines is
applied to increase a defendant’s punishment on account of a kind of harm that has
already been fully accounted for by application of another part of the Guidelines.”
United States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999)
(quotation omitted). It is permitted when the Sentencing Commission intended the
result, and each guideline section in question concerns a conceptually separate
notion related to sentencing. Id. at 1310.
In this case, Espinosa has failed to show that his sentence was substantively
unreasonable.2 As for his argument that the 16-level enhancement under §
2L1.2(b)(1)(A) for his prior drug felony conviction was arbitrary and without
2
Espinosa raises no challenge to the procedural reasonableness of his sentence, and
accordingly, has waived any claim in this respect. See United States v. Jernigan, 341 F.3d 1273,
1283 n. 8 (11th Cir.2003) (holding that issues not raised in an initial brief on appeal are deemed
abandoned).
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empirical justification, we are unconvinced. As we’ve said, “the absence of
empirical evidence is not an independent ground that compels the invalidation of a
guideline.” Snipes, 611 F.3d at 870. Indeed, the Supreme Court did not invalidate
the guideline in question in Kimbrough, but instead held that a lack of empirical
evidence was one factor that a district court could consider in exercising its right to
depart from the guidelines. Espinosa attempts to transform this right of the district
court into a duty to do so. But standing on its own, the lack of empirical evidence
does “not require the wholesale invalidation of sentencing guidelines.” Snipes,
611 F.3d at 870.
We are also unpersuaded by Espinosa’s claim that it is substantively
unreasonable that his same prior drug conviction enhanced his sentence both by
increasing his offense level and by raising his criminal history category. We have
held that the Sentencing Commission “clearly intended prior felonies to count
against defendants under both the criminal history section and § 2L1.2.” United
States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992). Moreover, this is
permissible because the purpose of the criminal history section is “to punish likely
recidivists more severely, while the enhancement under § 2L1.2 is designed to
deter aliens who have been convicted of a felony from re-entering the United
States.” Id. Thus, this supposed “double counting” is permissible because “the
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Sentencing Commission intended the result, and . . . because each section concerns
conceptually separate notions relating to sentencing.” Id. (quotation omitted).
Finally, there is no merit to the claim that the district court abused its
discretion in its consideration of the § 3553(a) factors. For starters, his sentence of
52 months’ imprisonment fell within the guideline range of 46 to 57 months, and
we would ordinarily expect such a sentence to be reasonable. Moreover, his
sentence was also well below the 20-year statutory maximum penalty. While the
district court did give specific emphasis to the commutation of Espinosa’s prior
drug conviction, there is nothing in the record to indicate that it did so “single-
mindedly” to the detriment of all the other § 3553(a) factors. See Crisp, 454 F.3d
at 1292. Rather, the record shows that the district court considered mitigating
evidence and noted specifically that it had read all of the letters from Espinosa’s
family. The court also noted its concern that part of Espinosa’s prior drug sentence
had been commuted pursuant to his initial removal from this country and that he
“more or less violate[d] the terms of conditions of probation” by returning. Thus,
the district court properly considered the § 3553 factors by observing, among other
things, that sentence within the guidelines range was necessary to promote respect
for the law and provide just punishment. Accordingly, Espinosa has not shown
that his sentence was substantively unreasonable.
AFFIRMED.
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