[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 13, 2007
No. 07-10747 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00392-CR-01-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
UBALDO LUNA-ROMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 13, 2007)
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Ubaldo Luna-Roman, an alien previously deported from the United States,
pleaded guilty to illegally reentering the country, in violation of 8 U.S.C.
§§ 1326(a) and (b). Luna-Roman faced an enhanced Sentencing Guidelines range
of 70 to 87 months on account of two prior convictions. The district court
sentenced Luna-Roman to serve 65 months in prison. On appeal, Luna-Roman
argues that his below-Guidelines sentence was unreasonable because the district
court “did not give appropriate weight” to relevant sentencing factors contained in
18 U.S.C. § 3553(a), including his personal characteristics and family ties to the
United States, which compelled his illegal reentry, or to the “absence of criminal
conduct leading up to his arrest.” Luna-Roman also argues that the district court
should have shortened his sentence to account for those lesser sentences that are
imposed for similar misconduct in districts in which the Department of Justice has
established early disposition or “fast-track” programs. Shortening his sentence,
Luna-Roman argues, would have helped to alleviate “unwarranted sentence
disparities” under § 3553(a)(6).
We apply the deferential standard of reasonableness to the final sentence,
focusing our attention on the factors set forth in 18 U.S.C. § 3553(a). United
States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006). The § 3553(a) factors
include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
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of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (summarizing 18
U.S.C. § 3553(a)). The district court need not explicitly state on the record that it
has considered each factor. Nor need the court discuss each individual factor. An
acknowledgment by the district court that it has considered the defendant’s
arguments and the § 3553(a) factors will suffice. Id. Absent such an express
acknowledgment, the district court’s statements over the entire sentencing hearing
may indicate that the court adequately weighed the statutory factors and the
defendant’s arguments. See United States v. Dorman, 488 F.3d 936, 944-45 (11th
Cir. 2007); see also Rita v. United States, 551 U.S. ___, 127 S.Ct. 2456, 2468, 168
L.Ed.2d 203 (2007) (noting that the “sentencing judge should set forth enough to
satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority”).
Additionally, we may compare the sentence actually imposed to the statutory
maximum in the reasonableness review process. See United States v. Winingear,
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422 F.3d 1241, 1246 (11th Cir. 2005). The burden of proving that the sentence is
unreasonable in light of the record and these factors rests on the party challenging
the sentence. Talley, 431 F.3d at 788.
In this case, the district court correctly calculated the Guidelines range and
heard arguments from both parties on the appropriate factors to consider in
sentencing Luna-Roman. While the court did not explicitly acknowledge that it
had considered the § 3553(a) factors, the court’s statements over the entire
sentencing hearing nevertheless indicate that the court afforded adequate
consideration to these factors and to Luna-Roman’s arguments. Finally, the district
court’s finding that the claimed “fast-track” disparities were irrelevant to the
purposes of § 3553(a)(6) was consistent with the law of this Circuit. See United
States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006).
As a result, Luna-Roman has failed to meet his burden of establishing that
his sentence was unreasonable. The judgment of the district court is
AFFIRMED.
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