[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 29, 2008
THOMAS K. KAHN
CLERK
No. 07-13706
D. C. Docket No. 06-00012-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO ESPINO CRUZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Georgia
(April 29, 2008)
Before BIRCH and DUBINA, Circuit Judges, and GOLDBERG,* Judge.
PER CURIAM:
___________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
Appellant, Alberto Espino Cruz (“Cruz”), pled guilty to one count of
conspiracy to distribute more than five grams of methamphetamine. The district
court sentence Cruz to 87 months imprisonment and Cruz then perfected this
appeal.
The issue on appeal is whether the district court relied on impermissible
factual considerations in sentencing Cruz to a sentence at the top of the applicable
Guidelines range.
“Whether a [sentencing] factor is impermissible is a question of law [this
court] reviews de novo.” United States v. Williams, 456 F.3d 1353, 1361 (11th
Cir. 2006). The party challenging the sentence bears the burden of showing that
the district court considered an unreasonable factor. Id. Where a party fails to
raise an objection during the sentencing, that objection is waived on appeal and
reviewed for plain error only. United States v. Zinn, 321 F.3d 1084, 1088 (11th
Cir. 2003).
After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we conclude that the district court did not commit plain
error1 in sentencing Cruz. See United States v. Rodriguez, 398 F.3d 1291, 1298
(2005). Accordingly, we affirm Cruz’s sentence.
1
Counsel for Cruz conceded at oral argument that plain error review applies in this case.
2
AFFIRMED.
3