[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12328 MAY 10, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 6:09-cr-00065-BAE-GRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SANTIAGO ARTEAGA CORREA,
a.k.a. Pedro Figueroa,
a.k.a. Pedro Figueroa Estrada,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(May 10, 2011)
Before EDMONDSON, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Santiago Correa appeals the reasonableness of his 32-month sentence for
illegally re-entering the United States after being removed, 8 U.S.C. § 1326(b).1
No reversible error has been shown; we affirm.
We review a final sentence for procedural and substantive reasonableness.
United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). A sentence may
be procedurally unreasonable if the district court fails to consider the appropriate
statutory factors or explain adequately the chosen sentence. Id. We evaluate the
substantive reasonableness of a sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 128 S.Ct. 586, 597 (2007).
The party challenging the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both the record and the 18 U.S.C. §
3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Under section 3553(a), a district court should consider the nature and
circumstances of the offense, the history and characteristics of the defendant, the
need for the sentence to provide adequate deterrence, respect for the law, and
protection of the public, provision for the medical and educational needs of the
defendant, policy statements of the Sentencing Commission, and the need to avoid
unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).
1
Correa’s sentence was 11 months above the top end of the advisory guidelines range of
15 to 21 months.
2
We conclude that Correa’s sentence was reasonable. Although his 32-
month sentence varied upward from the top of the advisory guidelines range by 11
months, the sentence was well below the 20-year statutory maximum he faced.
See 8 U.S.C. § 1326(b); United States v. Valnor, 451 F.3d 744, 751-52 (11th Cir.
2006) (affirming an upward variance and observing that the ultimate sentence was
appreciably below the statutory maximum). In addition, the district court stated
that it had considered the section 3553(a) factors, specifically Correa’s history and
characteristics and the need for the sentence to reflect the seriousness of the
offense. The court recounted Correa’s repeated illegal entries into the United
States and his two criminal convictions in this country, and the court concluded
that the seriousness of Correa’s offense warranted a sentence above the advisory
guidelines range.
The district court’s reasons for the sentence are supported by the record and
the section 3553(a) factors. Correa had been documented in the country illegally
at least five times; he also twice attempted to enter using false documents. In
addition, he had Georgia convictions for entering an automobile with intent to
commit a felony and for possessing with intent to distribute methamphetamine.
3
Correa argues that the district court based the sentence on its disagreement
with United States immigration law: an impermissible sentencing factor.2 A
sentence substantially affected by, United States v. Clay, 483 F.3d 739, 745 (11th
Cir. 2007), or based entirely upon an impermissible factor is unreasonable because
such a sentence does not achieve the purposes of section 3553(a), Velasquez, 524
F.3d at 1252. A sentencing judge “may not impose a more severe sentence than he
would have otherwise based on unfounded assumptions [about a defendant’s]
immigration status or on his personal views of immigration policy.” Id. at 1253.
While it is true that the district court made many comments expressing
generalized frustration with United States immigration policy and the perceived
poor enforcement of immigration laws, the court also specifically disclaimed that
these reasons were why Correa deserved a sentence above the guidelines range.
As noted, the court spoke of the specific facts of Correa’s case and explained why
Correa deserved a 32-month sentence; and those reasons are supported by the
record. Nothing sufficiently indicates that the court’s decision was substantially
affected by, much less based entirely, upon an impermissible factor. See
Velasquez, 524 F.3d at 1252; Clay, 483 F.3d at 745.
2
In determining the reasonableness of a sentence, we review de novo whether a factor
considered by the district court in sentencing a defendant is impermissible. United States v.
Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008).
4
That Correa believed certain mitigating factors -- including his family
responsibilities, the non-violent nature of his offense, and his cooperation with
authorities -- weighed in favor of a lower sentence does not make the district
court’s choice of sentence unreasonable. We defer to the court’s judgment about
the weight given to the section 3553(a) factors “unless the district court has made
‘a clear error of judgment’ and has imposed ‘a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.’” Gonzalez, 550 at 1324.
Given the court’s stress on Correa’s earlier illegal reentries and criminal record,
we cannot say that the court made such a clear error of judgment.
Based on the evidence in the record, we conclude that Correa’s sentence
was reasonable and that the district court adequately justified its upwardly variant
sentence. See Gall, 128 S.Ct. at 597 (explaining that a sentencing judge “must
consider the extent of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance”).
We reject Correa's argument that his above-guidelines sentence created
unwarranted sentencing disparities among similarly situated offenders. The
"avoidance of unwarranted disparities was clearly considered by the Sentencing
Commission when setting the Guidelines ranges"; so, a district court necessarily
5
gives weight and consideration to the need to avoid unwarranted disparities when
it correctly calculates and carefully reviews the guidelines range. See id. at 599.
AFFIRMED.
6