[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10831 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 8, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00417-WSD-CCH-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
MARIO LUIS PINEDA-BERMUDEZ,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 8, 2010)
Before EDMONDSON, HULL and MARTIN, Circuit Judges.
PER CURIAM:
Mario Luis Pineda-Bermudez appeals his 46-month sentence imposed after
pleading guilty to reentry of a deported alien, in violation of 8 U.S.C. § 1326(a),
(b)(2). On appeal, Pineda-Bermudez argues that his sentence, which is at the
bottom of the advisory guidelines range, is substantively unreasonable. After
review, we affirm.
I. BACKGROUND
A. Offense Conduct
In 1995, Pineda-Bermudez, a citizen of Mexico, was convicted of mutliple
cocaine trafficking offenses in California state court. In 1999, after serving his
sentence, Pineda-Bermudez was deported from the United States. Sometime in
2008, Pineda-Bermudez illegally reentered the United States.
In April 2009, Pineda-Bermudez was arrested in Gwinnett County, Georgia
for possession with intent to distribute marijuana. On September 9, 2009, Pineda-
Bermudez pled guilty to the state marijuana possession charge and received a five-
month sentence, which was credited as time served.
Following his plea, Pineda-Bermudez was held at the Gwinnett County
Detention Center on an Immigration and Customs Enforcement (“ICE”) detainer.
On September 14, 2009, Pineda-Bermudez was transferred to ICE custody until
his September 29, 2009 initial appearance on the federal illegal reentry charge.
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On December 3, 2009, Pineda-Bermudez pled guilty to the offense of reentering
the United States without the express consent of the Attorney General after having
been deported, in violation of 8 U.S.C. § 1326(a).
B. Sentencing
The presentence investigation report (“PSI”) calculated a total offense level
of 21 and a criminal history category of III, which yielded an advisory guidelines
range of 46 to 57 months’ imprisonment. The statutory maximum sentence for
illegal reentry by a deported alien in violation of 8 U.S.C. § 1326(a) is twenty
years’ imprisonment. See 8 U.S.C. § 1326(b)(2).
Pineda-Bermudez objected to the PSI’s assigning two criminal history
points for his 2009 Georgia marijuana possession conviction, arguing that it was
part of his reentry offense. The district court overruled Pineda-Bermudez’s
objection and adopted the PSI’s guidelines calculations. Pineda-Bermudez asked
for a downward variance, stressing that: (1) he did not receive credit for the three
weeks he spent under the ICE detainer and in ICE administrative custody; (2) he
suffers from a hernia; and (3) he posed no risk of recidivism because he intends to
return to Mexico to live with his wife and children.
The district court denied Pineda-Bermudez’s request for a downward
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variance. The district court acknowledged that Pineda-Bermudez was less likely
to reenter the United States if his family lived in Mexico. As for the ICE
detention, the district court emphasized the short period of time involved and
concerns for uniformity of sentences between judges. The district court concluded
that the Bureau of Prisons should determine credit for such detentions and that it
could “accommodate this by determining where within the guideline range to
sentence . . . .”
The district court determined that a sentence “somewhere near the lower
end” of the advisory guidelines range was appropriate. As for Pineda-Bermudez’s
hernia, the district court stated that it would “talk to the marshal” about an
immediate evaluation to see if Pineda-Bermudez was a candidate for surgery. The
district court stated that it had considered the 18 U.S.C. § 3553(a) factors, and
found the range fair and reasonable because it “takes into account the nature and
characteristics of you and the offense that you committed, that it does deter you
specifically and others, as it tells them that these are offenses, especially re-entry
offenses, with your sort of history, that we treat seriously and impose serious
punishments.” The district court imposed a 46-month sentence, the low end of
Pineda-Bermudez’s advisory guidelines range of 46 to 57 months’ imprisonment.
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II. DISCUSSION
We review the substantive reasonableness of a sentence under the abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007).1 The party challenging the sentence bears the burden of establishing that
the sentence is unreasonable in light of both the record and the § 3553(a) factors.
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).2 We ordinarily expect
a sentence within the advisory guidelines will be reasonable. United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
Here, we conclude that Pineda-Bermudez’s 46-month sentence is
reasonable. Pineda-Bermudez illegally entered the United States, committed
several criminal offenses, including drug trafficking offenses, and was deported
back to Mexico. Pineda-Bermudez then illegally reentered the United States and
1
Pineda-Bermudez does not challenge the district court’s guidelines calculations or in any
other way argue that his sentence is procedurally unreasonable.
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
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).
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committed another drug trafficking offense. Considering the totality of the
circumstances, Pineda-Bermudez’s illegal reentry is a serious offense, and we
reject Pineda-Bermudez’s argument that the district court’s 46-month sentence
overstates its seriousness. We also reject Pineda-Bermudez’s claim that his
sentence is so harsh that it promotes disrespect for the law.
In concluding that the advisory guidelines range was “fair” in Pineda-
Bermudez’s case, the district court emphasized the seriousness of the offense and
the need for the sentence to reflect that seriousness and to deter him and others
like him (i.e., with a drug-trafficking history) in future. The district court
considered Pineda-Bermudez’s arguments in mitigation and concluded that the
mitigating facts militated in favor of a sentence at the low end of the advisory
guidelines range, but did not support a variance below that range. We cannot say
the district court abused its discretion in imposing a 46-month sentence.
AFFIRMED.
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