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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10162
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20580-KMM-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANJAY JOHNSON,
Defendant-Appellant,
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Appeal from the United States District Court
for the Southern District of Florida
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(November 6, 2013)
Before WILSON, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Sanjay Johnson appeals his 30-month sentence after pleading guilty to one
count of illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal,
Johnson argues that his sentence was substantively unreasonable in light of the
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factors set forth in 18 U.S.C. § 3553(a), and should be less because he will not be
entitled to participation in a drug treatment program or other benefits, because he is
not a U.S. citizen.
I.
Johnson is a Jamaican national who was deported on September 9, 2010,
following two drug convictions and violations of his probation. On July 21, 2012,
U.S. Customs and Border Patrol stopped a vessel carrying several foreign
nationals, including Johnson, attempting to enter the U.S. The following month,
Johnson was indicted for illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2),
and pled guilty. In determining his sentence, the district court considered a
presentence investigation report (PSI) which determined that Johnson’s base
offense level was 8, and that base was raised by 12 levels because he was
unlawfully returning after conviction for a felony drug offense for which the
sentence imposed was 13 months or less. See USSG § 2L1.2. Additionally,
Johnson’s offense level was reduced because he accepted responsibility for his
offense and because the government filed a motion stating that he assisted
authorities by timely notifying them of his intention to plead guilty. After
determining Johnson’s offense level to be 17, the PSI detailed his criminal history,
including several convictions and revoked probation, and assigned a criminal
history level III. With a total offense level of 17 and criminal history of III,
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Johnson’s advisory sentencing guidelines range was 30-37 months imprisonment,
and the statutory range was 0 to 20 years imprisonment. Johnson filed a
memorandum seeking a deviation from the applicable guideline based upon the 18
U.S.C. § 3553(a) factors. Specifically, Johnson argued that he was ineligible for
the drug treatment program and halfway house because he was not a citizen and
would be transferred to an immigration detention facility following his release.
Thus, Johnson argued that he should have his sentence reduced because of this
disparity caused by his ineligibility for these programs.
Following a hearing, the district court explained that the fact that Johnson
could not reap the benefit of a drug treatment program or halfway house was the
result of the nature of the offense because he was a non-citizen. Indeed, as U.S.
citizens cannot be convicted of illegal reentry, these are not benefits that citizens
received that non-citizens could not receive. The district court sentenced Johnson
to 30 months imprisonment, and he was instructed to surrender to immigration
authorities after imprisonment. This appeal ensued.
II.
We review the reasonableness of a sentence for abuse of discretion and
reverse only if the district court is shown to have made clear error. Gall v. United
States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The party challenging the
sentence bears the burden of proving the sentence is unreasonable. United States v.
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Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). In determining substantive
reasonableness, we examine the totality of the circumstances, including an
evaluation of whether the factors in § 3553(a) support the sentence. United States
v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). The district court shall impose
a sentence “sufficient, but not greater than necessary to comply with the purposes”
of § 3553(a)(2), which include the need to reflect the seriousness of the offense, to
promote respect for the law, and to deter the criminal conduct. Id. The court shall
also consider the circumstances of the offense and the history and characteristics of
the defendant, as well as the sentencing range. 18 U.S.C. §§ 3553(a)(1), (a)(4).
We ordinarily expect that a sentence falling within the guidelines range will be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
III.
On appeal, Johnson reiterates that a sentencing court must consider the
guidelines range in light of other statutory concerns. See United States v. Booker,
125 S. Ct. 738, 756 (2005). Johnson repeats his argument that because he is not a
U.S. citizen, he will not be able to attend a drug treatment program while
incarcerated and thereby reduce his sentence, and upon release, he will be
transferred to a detention facility. Johnson insists that this represents disparate
treatment and should be considered in reducing his sentence. See 18 U.S.C.
§ 3553(a)(6) (emphasizing “the need to avoid unwarranted sentence disparities
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among defendants with similar records who have been found guilty of similar
conduct”).
In response, the government insists that Johnson’s sentence is substantively
reasonable. The district court explicitly addressed the § 3553(a) factors, explaining
that Johnson’s extensive criminal history, including distribution of narcotics and
use of firearms, justified his sentence. Further, the sentence is presumed
reasonable because it is at the bottom of the guidelines range and was supported by
the nature of the circumstances. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Third, in
response to Johnson’s argument that he will serve a longer sentence due to being
denied entry into a drug treatment program and halfway house, the government
cites a case in which we rejected a similar argument. United States v. Caiceda,
224 Fed. Appx. 947, 949 (11th Cir. 2007) (“[T]he record reflects [that] the court
properly considered the purposes of sentencing as reflected in 18 U.S.C. § 3553(a),
and all of [petitioner’s] arguments, including the argument that he might not
qualify for certain benefits because of his non-citizen status.”). Finally, the
government argues that Johnson’s 30-month sentence is substantially lower than
the 20 year statutory maximum for which he was eligible. See Gonzalez, 550 F.3d
at 1324 (11th Cir. 2008) (noting that one indication of the reasonableness of
defendant’s sentence was that it was “well below” the applicable statutory
maximum).
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Upon review, it is evident that Johnson’s 30-month sentence is substantively
reasonable in light of the § 3553(a) factors and circumstances. See id. at 1323–24.
His sentence is on the low end of the advisory guideline range. See Hunt, 526 F.3d
at 746. In addition, the district court considered Johnson’s prior criminal history
including his drug and firearm offenses, and violation of his probation. Further,
Johnson’s argument that he will not be entitled to certain sentence-reducing
programs because he is not a citizen is unavailing, as the nature of his crime
definitionally applies only to non-citizens. Based on these considerations, the
district court did not abuse its discretion in imposing a 30-month sentence. Thus,
upon review of the record and consideration of the parties’ briefs, we affirm
Johnson’s sentence.
AFFIRMED.
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