[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 26, 2007
No. 06-12443 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00107-CR-FTM-33-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL HERRERA-GUILLEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 26, 2007)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Miguel Herrera-Guillen appeals his 48-month sentence for being an
aggravated felon who illegally reentered the United States post-deportation, 8
U.S.C. § 1326(a), 1326(b)(2). Herrera-Guillen argues that the district court erred
in sentencing him to 48 months’ imprisonment because the court never considered
a sentence outside the 41 to 51 months’ guidelines range and, therefore, effectively
transformed the guidelines from advisory into mandatory. Herrera-Guillen also
argues that the district court did not genuinely consider the case’s mitigating
factors. As a result, Herrera-Guillen claims his sentence is unreasonable and seeks
to have his sentence vacated and the case remanded for resentencing.
Where a defendant challenges his overall sentence, we review for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).
“After Booker, a sentence may be reviewed for procedural or substantive
unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2006). A sentence may be procedurally unreasonable if “it is the product of a
procedure that does not follow Booker’s requirements, regardless of the actual
sentence,” as when the district judge fails to consider the relevant factors in 18
U.S.C. § 3553(a) or when the district judge considers impermissible factors. Id.;
United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006), pet. for cert.
filed, (Oct. 19, 2006) (No. 06-7352) (disagreement with Congress’s policy
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judgments are invalid grounds for a lower sentence).
A sentence also “may be substantively unreasonable, regardless of the
procedure used.” Hunt, 459 F.3d at 1182 n.3. In assessing reasonableness, we
consider “the final sentence, in its entirety, in light of the § 3553(a) factors.”
United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006). Reasonableness
review of the length of a sentence is “deferential” and “[t]he party who challenges
the sentence bears the burden of establishing that the sentence is unreasonable in
light of both [the] record and the factors in section 3553(a).” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although a sentence within the
guidelines is not per se reasonable, “when the district court imposes a sentence
within the advisory Guidelines range, we ordinarily will expect that choice to be a
reasonable one.” Id. at 787, 788.
Upon review of the record and sentencing transcripts, and upon
consideration of the briefs of the parties, we discern no reversible error. The
sentence was procedurally reasonable because the district court considered both the
guidelines and the § 3553(a) factors, noting that the guidelines range is just one of
the factors to be considered in sentencing. The sentencing judge considered
Herrera-Guillen’s arguments for mitigation and acknowledged that Herrera-
Guillen’s sentence was three months lower than it would have been had those
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arguments not been made, stating:
I understand your lawyer’s arguments and I have factored those in,
and quite frankly, that’s why I did not sentence you to the highest end
of the range, which is what I would have done, given the very violent
and vile nature of that crime. I mean, I can’t think of too many worse
things in life than to be raped while your children are on the other side
and your children being threatened if you don’t give into somebody’s
demands. I just can’t even imagine a worse factual scenario than that.
And that’s what I can’t, quite frankly, get around.
Although Herrera-Guillen argues that the district court “never considered a
sentence outside of the guideline range” and suggests that the court did not truly
consider the § 3553(a) factors, not once during his sentencing hearing did Herrera-
Guillen request a sentence any lower than “the low end of the guideline range.”
Even if Herrera-Guillen had made a request for such a departure, the district court
was entitled to sentence within the guidelines range without specifically
acknowledging each of the § 3553(a) factors. See, e.g., United States v. Scott, 426
F.3d 1324, 1329 (11th Cir. 2005). Here the district court specifically did note that
Herrera-Guillen’s arguments for mitigation had been factored into the sentencing
equation, showing that the sentencing judge definitely considered the § 3553(a)
factors.
The sentence was also substantively reasonable. Herrera-Guillen notes that
under Booker, a sentence within the guidelines range is not per se reasonable.
Talley, 431 F.3d at 786. Here, the sentencing judge did not blindly apply the
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guidelines range. The sentencing judge took account of the mitigating factors
offered by Herrera-Guillen and reduced the sentence below what he would have
imposed absent consideration of the § 3553(a) factors. “The weight to be accorded
any given § 3553(a) factor is a matter committed to the sound discretion of the
district court.” Williams, 456 F.3d at 1363. Moreover, “when the district court
imposes a sentence within the advisory Guidelines range, we ordinarily will expect
that choice to be a reasonable one.” Talley, 431 F.3d at 787, 788. Because the
sentencing judge in this case accorded some weight to the § 3553(a) factors,
sentenced Herrera-Guillen within the guidelines range, and provided valid reasons
for imposing a sentence near the top of the guidelines range, we are not “left with
the definite and firm conviction that the district court committed a clear error of
judgment.” Williams, 456 F.3d at 1363. Herrera-Guillen therefore has not shown
that “the sentence is unreasonable in light of both [the] record and the factors in
section 3553(a).” Id. at 788. Accordingly, we affirm his sentence.
AFFIRMED.
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