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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14560
Non-Argument Calendar
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D.C. Docket No. 5:19-cr-00246-KOB-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RIGOBERTO GONZALEZ-MARCIAL,
a.k.a. Berto Gonzalez-Marcial,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(March 18, 2020)
Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.
PER CURIAM:
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Rigoberto Gonzalez-Marcial appeals his within-guideline 14-month sentence
for illegal reentry after removal, in violation of 8 U.S.C. § 1326(a). On appeal, he
argues that the District Court’s sentence is substantively unreasonable in light of
his significant cultural assimilation in the United States. We disagree and affirm.
We review the reasonableness of a sentence under the abuse-of-discretion
standard. 1 Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The
party who challenges the sentence bears the burden to show that the sentence is
unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in § 3553(a)(2), including the need
to reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). The court must
also consider the nature and circumstances of the offense and the history and
characteristics of the defendant. Id. § 3553(a)(1). As pertinent, the court must also
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The Government contends we should review this substantive-reasonableness claim for
plain error because, although Gonzalez-Marcial argued for a lower sentence before the District
Court, he did not object to the reasonableness of the sentence after it was imposed. We do not
need to decide if plain-error review applies here because we conclude that there was no error,
plain or otherwise. See United States v. Victor, 719 F.3d 1288, 1291 n.3 (11th Cir. 2013).
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consider any policy statement issued by the sentencing commission in effect at the
time of sentencing. Id. § 3553(a)(5).
The weight given to any specific § 3553(a) factor is committed to the sound
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007). The district court is permitted to attach great weight to one § 3553(a) factor
over others. United States v. Overstreet, 713 F.3d 627, 638 (11th Cir. 2013). A
district court abuses its discretion “when it (1) fails to afford consideration to
relevant factors that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judgment in
considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc) (quoting United States v. Campa, 459 F.3d 1121, 1174 (11th
Cir. 2006) (en banc)). Although we do not presume that a sentence falling within
the guideline range is reasonable, we ordinarily expect such a sentence to be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008); but see Rita
v. United States, 551 U.S. 338, 347, 127 S. Ct. 2456, 2462 (2007) (concluding that
“a court of appeals may apply a presumption of reasonableness to a district court
sentence that reflects a proper application of the Sentencing Guidelines”). A
sentence imposed well below the statutory maximum is another indicator of a
reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008).
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Gonzalez-Marcial argues that the District Court committed a clear error of
judgment in this case by treating his cultural assimilation as an aggravating factor,
contrary to the Guidelines policy statements that treat it as a mitigating factor, and
therefore imposed a substantively unreasonable sentence. A district court must
consider “any pertinent policy statement” when determining the sentence.
18 U.S.C. § 3553(a)(5). The commentary to U.S.S.G. § 2L1.2 provides that
“[t]here may be cases in which a downward departure may be appropriate on the
basis of cultural assimilation.” U.S.S.G. § 2L1.2 cmt. n.8. It is undisputed that
Gonzalez-Marcial has been culturally assimilated in the United States.
Here, the District Court did not abuse its discretion by imposing a 14-month
sentence, which was within the guideline range. When sentencing
Gonzalez-Marcial, the District Court emphasized his criminal history, his prior
removals from the United States, and the “double-edge sword” of his familial
contacts to the United States, which encouraged him to continually illegally re-
enter the country. The Court did not, as Gonzalez-Marcial contends, treat cultural
assimilation as an aggravating factor. Rather, the District Court opted not to grant
a downward departure based on cultural assimilation. The Court was within its
discretion to give greater weight to Gonzalez-Marcial’s criminal history and his
nine prior removals over his cultural assimilation. Overstreet, 713 F.3d at 638.
Moreover, the sentence was within the guideline range and below the statutory
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maximum, which are further indicators of reasonableness. See Hunt, 526 F.3d at
746; Gonzalez, 550 F.3d at 1324. Accordingly, the District Court’s 14-month
sentence is substantively reasonable. We affirm.
AFFIRMED.
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