United States v. Meneleo Yanes Aguilera

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------- ELEVENTH CIRCUIT
NOV 1, 2007
No. 06-14671
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 06-00020-CR-FTM-33-SPC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MENELEO YANES AGUILERA,

Defendant-Appellant.

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Appeal from the United States District Court
for the Middle District of Florida
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(November 1, 2007)

Before EDMONDSON, Chief Judge, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
Menelo Yanes Aguilera (“Defendant”) appeals his 46-month sentence for

illegal reentry into the United States by an aggravated felon, in violation of 8

U.S.C. § 1326(a), (b)(2). We find no reversible error; we affirm.

Defendant pled guilty to a one-count indictment charging him with illegal

reentry into the United States. The Pre-Sentencing Investigation Report (“PSI”)

proposed a sentencing range of 46 to 57 months’ imprisonment, based on the

probation officer’s finding that Defendant was removed from the United States

after being convicted for trafficking cocaine, Defendant’s acceptance of

responsibility, and Defendant’s criminal history. The district court adopted the

PSI’s sentencing calculations.

At the sentencing hearing, Defendant argued for a below-Guidelines

sentence, based on several mitigating factors, including his extreme remorse, his

poverty-stricken upbringing in Honduras, his lack of relatives in Honduras, and

the discrimination he suffered in Honduras because of his sexual orientation. The

district court denied Defendant’s request for a reduced sentence and imposed a

sentence of 46 months’ imprisonment.

In announcing this sentence, the court stated that it had considered “the

advisory recommendations of the . . . Guidelines, and all the factors identified

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in . . . Sections 3553(a)(1) through (7)” and found “no reason to depart from the

sentence called for by application of the guidelines.” The court noted that the

sentence was at the “low end of the guidelines” and that Defendant’s current

problems stemmed from his prior trafficking conviction, “a serious violation of

our laws.” The court also acknowledged that Defendant’s entire family resided in

the United States and noted that Defendant would be doing the same if he had not

broken the law. Defendant objected to the sentence, arguing that it was

“unreasonable and an abuse of discretion.”

On appeal, Defendant argues that the sentence is unreasonable because the

district court did not give real weight to the section 3553(a) mitigating evidence he

presented at his sentencing hearing and that the sentence is greater than necessary

to accomplish the goals of sentencing. Pursuant to the Supreme Court’s

instructions in United States v. Booker, 543 U.S. 220, 264-65, 125 S.Ct. 738, 767,

160 L.Ed.2d 621, we review a defendant’s ultimate sentence for reasonableness.

United States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006). This review is

“deferential,” and “the party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable in light of both th[e] record and the

factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005). Although we have said that a sentence within the Guidelines range is not

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per se reasonable, we have noted that we would “ordinarily” expect such a

sentence to be reasonable.* Id. We will only remand for re-sentencing if “the

district court committed 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.” Williams, 456 F.3d at 1363.

A review of the record shows that Defendant’s sentence is procedurally

reasonable because the district court considered Defendant’s arguments on the

section 3553(a) mitigating factors in imposing Defendant’s sentence. The court

was not required to analyze specifically and to accept or to reject each of

Defendant’s arguments. See United States v. Scott, 426 F.3d 1324, 1329 (11th

Cir. 2005) (“[N]othing in Booker or elsewhere requires the district court to state

on the record that it has explicitly considered each of the § 3553(a) factors or to

discuss each of the § 3553(a) factors.”). The district court heard testimony and

argument from Defendant on the proposed mitigating factors and ultimately

concluded that the factors did not outweigh the seriousness of Defendant’s

criminal history, an element accounted for in the Guidelines calculation. See

*
The Supreme Court concluded recently that a federal appellate court may apply a presumption
of reasonableness to a properly calculated sentence falling within the Guidelines range. Rita v.
United States, 127 S.Ct. 2456, 2463 (2007). We have noted that the rationale of Rita calls into
question our reasons for not affording a presumption of reasonableness. See United States v.
Campbell, 491 F.3d 1306, 1314 n.8 (11th Cir. 2007).

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United States v. Hunt, 459 F.3d 1180, 1185-86 (11th Cir. 2006) (upholding

sentence as reasonable where the district court expressly acknowledged that it had

considered the section 3553(a) factors and “ultimately decided to give

considerable weight to the Guidelines in this case”). Such a decision was within

the sound discretion of the district court. See Williams, 456 F.3d at 1363 (stating

that we will not “substitute our judgment in weighing relevant factors”).

And, when considering Defendant’s criminal history as an aggravated felon

and the twenty-years statutory maximum term of imprisonment, we cannot say that

Defendant’s sentence at the low end of the Guidelines range was substantively

unreasonable. We therefore affirm Defendant’s sentence.

AFFIRMED.