[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14231 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cr-00074-RAL-AEP-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
VICTOR ANTONIO MANZANO-HERNANDEZ,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 22, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Victor Antonio Manzano-Hernandez appeals his 72-month sentence,
imposed after he pleaded guilty to illegal reentry after deportation in violation of 8
U.S.C. § 1326. On appeal, Manzano-Hernandez argues that his sentence was
procedurally unreasonable because the district court did not adequately explain the
sentence. He also argues that the sentence was substantively unreasonable
because the court relied too heavily on his criminal history, which was already
accounted for in his guideline range of 21-27 months, when it imposed an upward
variance and 72-month sentence. We affirm.
Manzano-Hernandez first entered the United States illegally in 1996 and
was ultimately ordered removed. He illegally reentered and was later arrested for
driving under the influence in 2002. Following his removal, he again reentered
and was arrested for driving under the influence in 2003 and domestic battery in
2005. He was removed in 2007. In June 2009, Manzano-Hernandez illegally
reentered and was arrested the following year for driving under the influence.
Manzano-Hernandez was charged with and pleaded guilty to one count of
illegal reentry after deportation. The district court calculated his sentencing
guideline range as follows: Under U.S.S.G. § 2L1.2, the base offense level was
eight. There was a four-level enhancement under § 2L1.2(b)(1)(D) because
Manzano-Hernandez had been previously deported, and a two-level reduction for
acceptance of responsibility. Based on his prior reentries and driving-under-the-
influence offenses, Manzano-Hernandez had a lengthy criminal history, which
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placed him in category V. He also had numerous other convictions which were
not counted in his criminal history calculations. The resulting guideline range was
21 to 27 months. The government requested an upward variance; Manzano-
Hernandez requested a sentence within the guideline range.
The district court noted that Manzano-Hernandez had been imprisoned for
fifteen months, the top end of the guideline range, following his prior illegal
reentry and that he had quickly returned to the United States after completion of
his supervised release. After considering the guideline range, the statutory factors
in 18 U.S.C. § 3553(a), and the parties’ arguments, the court determined that an
upward variance from the guideline range was necessary to meet the goals of
sentencing. Finding that a sentence at the top end of the guideline range had been
no deterrent previously, the court sentenced Manzano-Hernandez to 72 months’
imprisonment. Manzano-Hernandez objected to the sentence and now appeals on
the ground that his sentence is procedurally and substantively unreasonable.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010)
(en banc), pet. for cert. filed (U.S. Nov. 24, 2010) (No. 10-727). We will only
vacate a sentence if “we are left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a)
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factors by arriving at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” Id. at 1190 (quotation omitted).
In reviewing the reasonableness of a sentence, we conduct a two-step
review, first ensuring that the sentence was procedurally reasonable, meaning the
district court properly calculated the guideline range, treated the guideline range as
advisory, considered the § 3553(a) factors, did not select a sentence based on
clearly erroneous facts, and “adequately explain[ed] the chosen sentence.” Gall v.
United States, 552 U.S. 38, 51 (2007). “A district court’s unjustified reliance on a
single § 3553(a) factor may be a ‘symptom’ of an unreasonable sentence.” United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). But it is within the
district court’s discretion to determine how much weight to give to each § 3553(a)
factor, and where the court has explained why it “attached great weight to one
factor,” we have held the sentence to be reasonable. Id. at 1323.
Once we determine that a sentence is procedurally sound, we must examine
whether the sentence was substantively reasonable in light of the record and the
§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
The district court is required to impose a sentence that is “sufficient, but not
greater than necessary, to comply with the purposes” listed in 18 U.S.C.
§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote
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respect for the law, provide just punishment for the offense, adequately deter
criminal conduct, protect the public from the defendant’s future criminal conduct,
and provide the defendant with needed educational or vocational training or
medical care. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court
must also consider the nature and circumstances of the offense, 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 unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)-(7).
When reviewing a sentence outside of the guideline range, we “may not
apply a presumption of unreasonableness.” Gall, 552 U.S. at 51. We “may
consider the extent of the deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Id. The party challenging the sentence has the burden of establishing
that the sentence was unreasonable. Talley, 431 F.3d at 788.
We conclude that Manzano-Hernandez’s 72-month sentence was both
procedurally and substantively reasonable. The district court properly calculated
the guideline range, treated that range as advisory, stated that it needed to impose
a sentence that met the § 3553(a) factors, and explained which factors most
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influenced its decision to impose an upward variance. The court explained that
because of Manzano-Hernandez’s criminal history and recidivism, it relied most
heavily on the prior conduct, the need to protect the public from future crimes, and
the need for deterrence.
We further conclude that Manzano-Hernandez’s sentence was substantively
reasonable. Manzano-Hernandez had been convicted for driving under the
influence four times, he had been deported from the United States twice, and was
before the court on his second conviction for illegal reentry. Furthermore, his last
sentence for illegal reentry was at the high-end of the guideline range, and yet he
committed this illegal reentry less than a year after his supervised release in that
case ended. The upward variance was thus justified by his criminal history and the
lack of deterrence from the previous sentence. We cannot say that the court
abused its discretion in this case.
AFFIRMED.
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