[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 13, 2008
No. 07-10010
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60207-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FUENTES-TAVORA,
a.k.a. Jose Alberto Barba,
a.k.a. Ricardo Valladares,
a.k.a. Mario Ovelio Lara,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 13, 2008)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jose Fuentes-Tavora appeals his 77-month sentence, which was imposed
after he pled guilty to one count of illegally re-entering the United States after
being deported, in violation of 8 U.S.C. § 1326(a). He claims (1) the district court
erred in failing to give him credit for time served in state custody, and (2) his
sentence was unreasonable.
I.
We review the district court’s findings of fact for clear error and its
application of the Sentencing Guidelines to those facts de novo. United States v.
Davis, 313 F.3d 1300, 1305 (11th Cir. 2002). Under U.S.S.G. § 5G1.3(b), the
district court shall adjust a defendant’s sentence for time already served if the term
of imprisonment resulted from another offense (1) that is relevant conduct to the
instant offense of conviction and (2) was the basis for an increase in offense level
for the instant offense. The intended purpose of § 5G1.3(b) is to credit defendants
who have already served time, generally in another jurisdiction, for the same
conduct or course of conduct. United States v. Flowers, 13 F.3d 395, 397 (11th
Cir. 1994) (applying an earlier, but nearly identical version of § 5G1.3(b)).
The district court was not required under § 5G1.3(b) to credit Fuentes-
Tavora for the time he served in state custody prior to his federal trial. Fuentes-
Tavora was in state custody stemming from his charges of battery on a law
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enforcement officer and obstruction with and without violence. These offenses are
not relevant conduct, as defined in U.S.S.G. § 1B1.3(a), to the instant offense of
illegally re-entering the United States after being deported. Thus, § 5G1.3(b) is
inapplicable, and the district court was not required to adjust Fuentes-Tavora’s
sentence to reflect his time already served in state custody.1
II.
Generally, we review a defendant’s sentence for reasonableness.2 United
States v. Booker, 125 S. Ct. 738, 765-66 (2005). Reasonableness review requires
us to review the sentence under an abuse-of-discretion standard. Gall v. United
States, 128 S. Ct. 586, 594 (2007). We “must first ensure that the district court
committed no significant procedural error,” and then we “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Id. at 597. The party challenging the sentence bears the burden of establishing the
1
Fuentes-Tavora does not argue on appeal the court should have granted him a departure
under U.S.S.G. § 5G1.3(c). Even if he did, a court is not required to grant a departure under
§ 5G1.3(c), as it is under § 5G1.3(b) if certain circumstances are present. Likewise, United
States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998), which Fuentes-Tavora does cite in his
brief, does not require the court to grant a departure, but rather acknowledges it is within the
court’s discretion to do so based on time already served in state custody or the lost opportunity to
serve a greater portion of a state sentence concurrently with the federal one.
2
Though the Government claims plain error review is appropriate where, as here, a
defendant raises a reasonableness argument for the first time on appeal, we need not decide
whether plain error review is proper, as the outcome is the same under either standard.
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sentence was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005). We may presume a sentence within the properly calculated Guidelines
range is reasonable. Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
After carefully reviewing the record and the parties’ briefs, we conclude the
district court committed neither procedural nor substantive error in arriving at
Fuentes-Tavora’s sentence. The court correctly calculated the applicable
Guidelines range and noted it had discretion to vary from the range. Also, the
court considered the 18 U.S.C. § 3553(a) factors and explained its reasons for
sentencing Fuentes-Tavora at the low end of the Guidelines range. The court
specifically considered whether a sentence within the Guidelines range was greater
than necessary to meet the goals of § 3553(a). After noting valid reasons existed
for sentencing Fuentes-Tavora at the higher end of the range, the court determined
a 77-month sentence was sufficient to serve the statutory goals.
To the extent Fuentes-Tavora argues the court’s decision not to give him
credit for time served was unreasonable, we made clear in United States v.
Winingear that individual sentencing decisions are not subject to reasonableness
review. 422 F.3d 1241, 1245 (11th Cir. 2005). Instead, we review the final
sentence for reasonableness. Id. Given the district court’s application of the
Guidelines range as advisory, consideration of the § 3553(a) factors, explanation
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for reaching its decision, and imposition of a sentence within the properly
calculated Guidelines range, we conclude the district court did not abuse its
discretion in sentencing Fuentes-Tavora to 77-months’ imprisonment.
Accordingly, we affirm.
AFFIRMED.
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