[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 4, 2008
No. 07-13973 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00558-CR-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO P. RIVERA,
a.k.a. Cukie,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 4, 2008)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Alfredo P. Rivera appeals his 63-month sentence following convictions for
conspiracy to possess at least five kilograms of cocaine, 21 U.S.C.
§ 841(b)(1)(A)(ii) and 846, and possession with intent to distribute at least five
kilograms of cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii), and 18 U.S.C. § 2.
On appeal, Rivera argues that the district court imposed a procedurally
unreasonable sentence because it gave the guideline range a presumption of
appropriateness, in violation of Rita v. United States, 551 U.S. __, 127 S.Ct. 2456,
2462, 168 L.Ed.2d 203 (2007), and it failed to consider that the guidelines did not
contemplate the mitigating factors in the case. He also argues that his sentence was
substantively unreasonable because the court relied on the fact that, unlike his co-
defendants, Rivera went to trial, and it imposed a sentence that was greater than
necessary to comply with the purposes of sentencing.
We review the final sentence imposed by the district court for
reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007).
Unreasonableness may be procedural, when the court's procedure does not follow
the requirements of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L .
Ed.2d 621 (2005), or substantive. See Gall v. United States, 552 U.S. __, 128 S.Ct.
586, 597, 169 L.Ed.2d 445 (2007). The U.S. Supreme Court has explained that a
sentence may be procedurally unreasonable if the district court improperly
calculates the guideline imprisonment range, treats the guidelines as mandatory,
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fails to consider the appropriate statutory factors, bases the sentence on clearly
erroneous facts, or fails to explain its reasoning adequately. Id. The Court also has
explained that the substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Id. It has suggested that review for substantive
reasonableness under this standard involves inquiring whether the factors in 18
U.S.C. § 3553(a) support the sentence in question. Id. at 600.
We have reviewed the record and considered the briefs of the parties and
find no reversible error. The record demonstrates that the district court correctly
calculated the advisory guideline range, considered the sentencing factors set forth
in § 3553(a), specifically mentioning the nature and seriousness of the offense,
Rivera's personal history and characteristics, and the need to avoid unwanted
sentencing disparities, considered the parties' arguments concerning the sentence to
be imposed, and sufficiently explained its reasons for imposing the sentence.
In short, Rivera has not established that his sentence of 63 months’
imprisonment, which is at is at the low-end of the advisory guideline range, is
either procedurally or substantively unreasonable. Therefore, the district court did
not abuse its discretion in sentencing Rivera to 63 months’ imprisonment.
AFFIRMED.
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