[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 30, 2010
No. 09-15897 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00175-CR-FTM-99DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO REYES-GUTIERREZ,
a.k.a. Pedro Reyes Gutierrez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 30, 2010)
Before CARNES, MARCUS and FAY Circuit Judges.
PER CURIAM:
Pedro Reyes-Gutierrez appeals from his 77-month sentence, imposed
following his conviction for illegal re-entry into the United States, in violation of 8
U.S.C. § 1326(a) and (b)(1). Reyes-Gutierrez argues that his sentence is
procedurally unreasonable because the district court failed to adequately explain
the basis for his sentence, and also failed to adequately consider the mitigating
evidence and arguments that he presented during his sentencing hearing.1
In addition, Reyes-Gutierrez argues that his sentence, which is at the low end
of his guideline range, is substantively unreasonable. In support of this argument,
Reyes-Gutierrez points to his familial ties, and asserts the 36-month sentence that
he suggested at sentencing would be severe. Reyes-Gutierrez also asserts that
there were mitigating circumstances surrounding his past offenses.
For the reasons set forth below, we affirm.
I.
A federal grand jury indicted Reyes-Gutierrez, charging that he, an alien
who had been convicted of a felony offense, had unlawfully entered the United
States after having previously been removed from the United States, in violation of
8 U.S.C. § 1326(a) and (b)(1). Reyes-Gutierrez pled guilty to the offense.
In preparing the presentence investigation report (“PSI”), the probation
1
Reyes-Gutierrez also argues, in his reply brief, that the district court procedurally erred
by treating his guideline range as presumptively reasonable. We do not address this argument,
as Reyes-Gutierrez failed to raise it in his initial brief. See United States v. Britt, 437 F.3d 1103,
1104-05 (11th Cir. 2006).
2
officer noted that immigration authorities had deported Reyes-Gutierrez in July
2008. Thereafter, Reyes-Gutierrez was arrested in Florida on November 12, 2008,
for committing battery against his wife, Solidad Soriano. In an interview with a
U.S. Immigration and Customs Enforcement officer, Reyes-Gutierrez admitted that
he had re-entered the United States approximately one month after his deportation
in July. In reviewing Reyes-Gutierrez’s criminal history, the probation officer
reported that, in 1999, Reyes-Gutierrez had sustained a conviction for aggravated
assault on a law enforcement officer. In addition to his aggravated-assault
conviction, Reyes-Gutierrez had sustained two convictions for battery. The arrest
reports reflected that these convictions arose out of incidents of domestic violence
by Reyes-Gutierrez against Soriano. In connection with his more recent battery
conviction, the arrest report had stated that Reyes-Gutierrez partially had choked
Soriano with a bandana, and had threatened to kill her.
In reviewing Reyes-Gutierrez’s personal history, the probation officer
reported that Reyes-Gutierrez and Soriano had 4 children between the ages of 4
and 11, and that Reyes-Gutierrez provided the majority of the family’s financial
support. Soriano informed the U.S. Probation Office that Reyes-Gutierrez was a
“good father and husband,” and stated that she would like for Reyes-Gutierrez to
return to their residence and live with their family. The PSI reported that Reyes-
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Gutierrez’s total offense level was 21, which, when combined with his criminal
history category of VI, produced a guideline range of 77 to 96 months’
imprisonment.
At sentencing, the court adopted the factual statements and guideline
applications in the PSI. Reyes-Gutierrez argued that, in light of the sentencing
factors set forth in 18 U.S.C. § 3553(a), the court should grant him a downward
variance. In mitigation of his sentence, Reyes-Gutierrez presented the statements
of his sister and his 11-year-old daughter. Reyes-Gutierrez’s sister and daughter
informed the court that Reyes-Gutierrez was the primary source of his family’s
financial support. In further mitigation of his sentence, Reyes-Gutierrez argued
that his criminal history, as a whole, did not demonstrate that he was a violent
person, and asserted that many of his offenses bore a connection to his problem
with alcohol consumption. He pointed out that, although he twice had been
convicted of battery against Soriano, Soriano had informed the U.S. Probation
Officer that she hoped that Reyes-Gutierrez would be able to resume residing with
their family. Reyes-Gutierrez emphasized that he had re-entered the United States
in order to provide for his family. He suggested that a 36-month term of
imprisonment would be sufficient to serve the statutory purposes of sentencing, as
3 years in prison constitutes a severe punishment.
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The court imposed a sentence of 77 months’ imprisonment, stating, “[T]he
[c]ourt is required to impose a sentence that is sufficient, but not greater than
necessary, after considering all the statutory factors. Your attorney has gone over
those, and I’ve considered all those factors.” The court further stated that, although
Reyes-Gutierrez’s guideline range was advisory, a downward variance was not
warranted under the § 3553(a) factors. The court next stated:
You have an extensive criminal history for the last ten years.
You’ve been committing crimes. Some less serious than others, of
course. But, as a result of that, you score the highest criminal history
category that the [G]uidelines have. You violated probation on
several occasions. All of this is by a person who is not supposed to be
in this country at all.
I’d be more impressed with the pleas with regard to family
membership if your last conviction hadn’t been battery upon your
wife. You’ve used a number of aliases, a number of different dates of
births. You have drug and alcohol issues. You’ve committed crimes
of violence, in my view, as exemplified by the two battery convictions
and the aggravated assault on a law enforcement officer that’s in your
history.
You were deported from the United States relatively recently.
You came back almost immediately. There’s no doubt in my mind
that you are going to do the same thing if given another opportunity.
After imposing sentence, the court asked the parties if there were any
objections to the sentence or the manner in which it was imposed. Reyes-Gutierrez
objected that his sentence constituted an abuse of the court’s discretion, and
asserted that a downward variance was warranted. The court overruled the
objection.
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II.
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), the Guidelines are advisory in nature, and “a sentence may be reviewed for
procedural or substantive unreasonableness.” United States v. Hunt, 459 F.3d
1180, 1181-82 & n.3 (11th Cir. 2006). The reasonableness of a sentence is
reviewed under an abuse-of-discretion standard. United States v. Pugh, 515 F.3d
1179, 1189-90 (11th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51, 128
S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)).2
A sentence is procedurally unreasonable if the district court failed to
calculate or incorrectly calculated the guideline range, treated the Guidelines as
mandatory, failed to consider the factors set forth in 18 U.S.C. § 3553(a), selected
a sentence based on clearly erroneous facts, or failed to explain adequately the
chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Section 3553(a) provides
that district courts imposing a sentence must consider, inter alia:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence
imposed—(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense;
2
The government argues that Reyes-Gutierrez’s procedural-reasonableness arguments
are subject to plain-error review because he did not raise these arguments before the district
court. We do not decide whether plain-error review would apply in this case because, as
explained below, Reyes-Gutierrez’s sentence is procedurally reasonable under either an abuse-
of-discretion or plain-error standard of review.
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(B) to afford adequate deterrence to criminal conduct; (C) to protect
the public from further crimes of the defendant; and (D) to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
[and] (3) the kinds of sentences available.
18 U.S.C. § 3553(a)(1)-(3). The court also should consider the applicable
guideline range, any pertinent policy statements promulgated by the Sentencing
Commission, the need to avoid any unwarranted sentencing disparities, and the
need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a)(4)-
(7).
A district court “must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing.”
Gall, 552 U.S. at 50, 128 S.Ct. at 597. Specifically, § 3553(c) requires that, “[t]he
sentencing judge . . . set forth [sufficient reasoning] to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007).
Procedural reasonableness does not require that a court recite or discuss each
of the § 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005) (addressing whether a defendant’s sentence was procedurally reasonable
under Booker); see also United States v. Bonilla, 463 F.3d 1176, 1182 (11th Cir.
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2006) (addressing whether the court adequately articulated the basis for the
defendant’s sentence, as required by 18 U.S.C. § 3553(c)(1)). Rather, it is
sufficient if a court merely states that, in selecting the defendant’s sentence, it has
considered the parties’ arguments and the § 3553(a) factors. Scott, 426 F.3d at
1329-30. On the other hand, a district court need not expressly mention § 3553(a)
where its reasoning demonstrates that it considered the § 3553(a) factors. See
United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007).
Here, the district court did not abuse its discretion by failing to adequately
explain the basis for its sentence. The court expressly stated that it had considered
“all” of the § 3553(a) factors in determining Reyes-Gutierrez’s sentence, and noted
that Reyes-Gutierrez had presented arguments as to the application of the § 3553(a)
factors. Moreover, by discussing the extent and nature of Reyes-Gutierrez’s
criminal history, as well as the fact that Reyes-Gutierrez had re-entered the United
States one month after he was deported, the court demonstrated its consideration of
several of the § 3553(a) factors—namely, the nature and circumstances of the
offense, the history and characteristics of the defendant, and the need for the
sentence to provide for adequate deterrence and to protect the public from future
crimes. In its reasoning, the court made clear that, although Reyes-Gutierrez had
familial obligations, a guideline sentence was warranted due to his past crimes and
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demonstrated disregard for the law. Accordingly, the court’s reasoning was
sufficient to provide for meaningful appellate review.
Moreover, while Reyes-Gutierrez asserts that the court failed to adequately
consider his mitigating arguments and evidence, the court expressly discussed
Reyes-Gutierrez’s emphasis on his relationship with his family, and concluded that
this argument was undermined by Reyes-Gutierrez’s two convictions for
committing battery against his wife. In addition, although the court did not
separately address Reyes-Gutierrez’s request for a 36-month sentence, the court
made clear that it rejected this proposed sentence due to the extent and nature of
Reyes-Gutierrez’s criminal history. Accordingly, Reyes-Gutierrez’s argument in
this regard lacks merit.
III.
“[A] sentence may be substantively unreasonable, regardless of the
procedure used.” Hunt, 459 F.3d at 1182 n.3. The party challenging the sentence
“bears the burden of establishing that the sentence is unreasonable in the light of
[the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005). “[T]here is a range of reasonable sentences from which
the district court may choose,” and, when the court imposes a sentence that is
within the guideline range, we ordinarily expect that sentence to be reasonable. Id.
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A district court possesses “considerable discretion” in weighing the § 3553(a)
factors, and we defer to the district court’s judgment unless it made “a clear error
of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” Pugh,
515 F.3d at 1191 (quotation omitted).
Reyes-Gutierrez has failed to meet his burden of establishing that his 77-
month sentence is substantively unreasonable. This sentence was within Reyes-
Gutierrez’s guideline range, and well below the applicable statutory-maximum
term of ten years’ imprisonment. See 8 U.S.C. § 1326(b)(1). While Reyes-
Gutierrez emphasizes his familial ties and the length of his proposed 36-month
sentence, and asserts that there were mitigating circumstances surrounding his
criminal history, these arguments do not demonstrate that his sentence is
substantively unreasonable. As the district court correctly noted, Reyes-
Gutierrez’s argument that his familial ties warranted a downward variance was
undermined by the fact that he had sustained two convictions for battery against his
wife. In this regard, it bears noting that the facts underlying Reyes-Gutierrez’s
second battery conviction indicated that this battery was particularly violent, as the
offense involved choking and a death threat. In addition, this battery conviction
occurred recently, in November 2008, only several months after Reyes-Gutierrez
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was deported from the United States in July 2008. Moreover, Reyes-Gutierrez’s
re-entry into the United States only one month after he was deported demonstrated
his disregard for the immigration laws. In light of these facts, the district court did
not commit a clear error of judgment in concluding that a sentence at the low end
of Reyes-Gutierrez’s guideline range was warranted. Accordingly, Reyes-
Gutierrez’s has failed to demonstrate that his 77-month sentence is outside the
range of reasonable sentences. As a result, the district court did not abuse its
discretion by imposing a 77-month sentence.
AFFIRMED.
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