[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12621 March 27, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-20002-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM PUENTES CERVERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 27, 2008)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant William Puentes Cervera appeals his 48-month sentence
following his guilty plea to illegal reentry by an individual previously convicted of
an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On appeal,
Cervera argues that his sentence is procedurally unreasonable because the district
court overemphasized his criminal history to the exclusion of any consideration of
the other 18 U.S.C. § 3553(a) factors. Additionally, Cervera contends that
appropriately weighing his innocuous motivation for reentry, the minor nature of
most of his prior offenses, and the overly severe guideline treatment of the offense,
his 48-month sentence is substantively unreasonable.
“We review the sentence imposed by the district court for reasonableness.”
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Recently, the Supreme
Court clarified that courts of appeal are to review sentences for abuse of discretion.
Gall v. United States, 552 U.S. __, __, 128 S. Ct. 586, 597 (2007). We
must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence-including an explanation for any
deviation from the Guidelines range.
Id. To that end, the district court “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.” Rita v. United States, 551
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U.S. __, 127 S. Ct. 2456, 2468 (2007). However, “nothing in Booker1 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.” United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
If the district court’s decision is procedurally reasonable, our analysis then
turns to the substantive reasonableness of the sentence. Gall, 552 U.S. at __, 128
S.Ct. at 597. “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and
the factors in section 3553(a).” Talley, 431 F.3d at 788. Reasonableness review is
“deferential,” and “there is a range of reasonable sentences from which the district
court may choose.” Id. “In reviewing the ultimate sentence imposed by the district
court for reasonableness, we consider the final sentence, in its entirety, in light of
the § 3553(a) factors” rather than reviewing each individual decision made during
the sentencing process. United States v. Martin, 455 F.3d 1227, 1237 (11th Cir.
2006) (internal quotations and alteration omitted). Furthermore, “[t]he weight to
be accorded any given § 3553(a) factor is a matter committed to the sound
discretion of the district court.” United States v. Williams, 456 F.3d 1353, 1363
(11th Cir. 2006), cert. dismissed, 127 S. Ct. 3040 (2007), abrogated on other
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United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
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grounds by Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558 (2007). We
have noted that “a district court’s unjustified reliance on any one Section 3553(a)
factor may be a symptom of an unreasonable sentence.” United States v. Pugh,
___ F.3d ___ (No. 07-10183) (11th Cir. Jan. 31, 2008). 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
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.
Talley, 431 F.3d at 786 (summarizing 18 U.S.C. § 3553(a)).
In Rita, the Supreme Court held that, in reviewing sentences for
reasonableness under 18 U.S.C. § 3553(a), a federal appellate court may apply a
presumption of reasonableness to a district court sentence imposed within the
guideline range. Rita, 551 U.S. at __, 127 S. Ct. at 2462. Although we do not
apply such a presumption, we will ordinarily expect a sentence within the
guidelines range to be reasonable. Talley, 431 F.3d at 788; see United States v.
Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007) (declining to apply a presumption
of reasonableness to within-guideline sentences).
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After reviewing the record and reading the parties’ briefs, we conclude that
Cervera’s sentence is procedurally reasonable because the district court specifically
stated that it had considered the § 3553(a) factors, thoroughly explained its
reasoning for sentencing Cervera within the guideline range, considered Cervera’s
arguments for a below-guideline sentence, and addressed several of the § 3553(a)
sentencing factors. We also conclude that Cervera fails to meet his burden of
showing that his 48-month sentence, which is near the low end of the advisory
guideline range, is substantively unreasonable. Accordingly, we affirm Cervera’s
sentence.
AFFIRMED.
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