[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15882 ELEVENTH CIRCUIT
AUGUST 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00117-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO ZAVALA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 30, 2010)
Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Sergio Zavala appeals his 77-month sentence following his conviction for
re-entry of a removed alien, 18 U.S.C. § 1326. On appeal, Zavala argues that his
sentence at the low end of the Sentencing Guideline range is substantively
unreasonable because the district court only looked at the guideline range. Zavala
does not challenge the procedural reasonableness of his sentence. Additionally,
Zavala acknowledges that our decision in United States v. Vega-Castillo, 540 F.3d
1235 (11th Cir. 2008) (holding that a district court without a fast-track program
may not issue a sentencing departure or variance based on the availability of
fast-track programs in other districts), cert. denied, 129 S.Ct. 2825 (2009), is
controlling, but wishes to preserve the issue should we decide differently in the
future.1
We review “all sentences–whether inside, just outside, or significantly
outside the Guidelines range–under a deferential abuse-of-discretion standard.”
United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotation omitted).
“[T]he district court must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing.” Id.
(quotation omitted). “The length and amount of detail of the judge’s reasoning
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We note that Zavala did not make this argument in the district court. Therefore,
even if we were not bound by Vega-Castillo, we would review Zavala’s argument only for plain
error. We also note that Zavala concedes in his brief on appeal that it is “unclear on this record
whether the district court would or would not have varied from the guidelines based on the fast-
track disparity.” Zavala brief at 17.
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required depends on the circumstances.” Id. The “sentencing judge is not required
to state on the record that it has explicitly considered each of the [18 U.S.C.]
§ 3553(a) factors,” but “should set forth enough to satisfy the appellate court that
he has considered the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Id. (quotation omitted). A district
court’s explicit acknowledgment that it has considered a defendant’s arguments
and the § 3553(a) factors is sufficient to demonstrate that it has adequately and
properly considered those factors. United States v. Ellisor, 522 F.3d 1255, 1278
(11th Cir. 2008).
Pursuant to Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d
445 (2007), we must review the sentencing process for both procedural error and
substantive reasonableness. Livesay, 525 F.3d at 1091. Procedural errors occur
when the district court fails to calculate or improperly calculates the guidelines
range, treats the guidelines as mandatory, fails to consider the § 3553(a) factors,
selects a sentence based on clearly erroneous facts, or fails to explain adequately
the chosen sentence–including an explanation for any deviation from the
guidelines range. Id. We examine substantive reasonableness “under an abuse of
discretion standard, taking into account the totality of the circumstances” and
“must give due deference to the district court’s decision that the § 3553(a) factors,
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on a whole, justify the extent of the variance.” Id. (quotations omitted). We
ordinarily “expect a sentence within the Guidelines range to be reasonable.”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Pursuant to § 3553(a), the sentencing court shall impose a sentence
“sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection,” namely, to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
conduct, protect the public from future crimes of the defendant, and provide the
defendant with needed educational or vocational training or medical care. See 18
U.S.C. § 3553(a)(2). The sentencing court must also consider the following factors
in determining a particular sentence: the nature and circumstances of the offense
and the history and characteristics of the defendant, the kinds of sentences
available, the applicable guideline range, the pertinent policy statements of the
Sentencing Commission, the need to avoid unwanted sentencing disparities, and
the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).
In this case, Zavala’s sentence is substantively reasonable because the
district court considered Zavala’s personal characteristics and substantial criminal
history, including assault with a deadly weapon, and found that a sentence at the
low end of the guideline range satisfied the purposes of sentencing. Therefore, the
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district court did not abuse its discretion by sentencing Zavala to 77-months’
imprisonment. In addition, Zavala correctly notes that Vega-Castillo remains
binding precedent. Accordingly, we affirm Zavala’s sentence.
AFFIRMED.
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