[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12998 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 19, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:11-cr-00117-WSD-GGB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAXIMINO MATEO NUNEZ,
a.k.a. Jose Carlos Rosario Martinez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 19, 2011)
Before DUBINA, Chief Judge, PRYOR, and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Maximino Mateo Nuñez appeals his 30-month sentence for
illegal reentry, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Nuñez argues
that his sentence is substantively unreasonable because the district court focused
on his past criminal history to the exclusion of other appropriate factors.
According to Nuñez, a downward variance from the guideline range was
appropriate.
We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). “The
review for substantive unreasonableness involves examining the totality of the
circumstances, including an inquiry into whether the statutory factors in [18
U.S.C.] § 3553(a) support the sentence in question.” United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008). “[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).” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). “The 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, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotations and alteration
omitted). We vacate a sentence only if “left with the definite and firm conviction
that 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
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sentences dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160,
1190 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011) (quotation
omitted). Although we do not automatically presume a sentence within the
guidelines range is reasonable, we ordinarily expect a sentence within the
guidelines range to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th
Cir. 2008).
When sentencing a defendant, a district court must consider: (1) the nature
and circumstances of the offense and the history and characteristics of the
defendant; (2) the need for the sentence imposed to afford adequate deterrence to
criminal conduct, to protect the public from further crimes of the defendant, and to
provide the defendant with training, medical care, or correctional treatment; (3)
the Sentencing Guidelines’ range; (4) pertinent Sentencing Commission policy
statements; (5) the need to avoid unwarranted sentencing disparities among
similarly situated defendants with similar records; and (6) the need to provide
restitution to victims. See 18 U.S.C. § 3583(e) (providing that the court must
consider the sentencing factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B)(D),
and (a)(4)(7) when sentencing a defendant upon revocation of supervised release);
18 U.S.C. § 3553(a)(1), (a)(2)(B)(D), and (a)(4)(7).
After reviewing the record and reading the parties’ briefs, we conclude that
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Nuñez’s 30-month sentence was substantively reasonable. The district court
properly considered all the factors and imposed a within-range guideline sentence,
well below the 20-year statutory maximum. As Nuñez himself mentions, there are
almost no factors that would distinguish him from a typical illegal reentry case.
He had a criminal history involving drugs, and even if the court could have
deemed his prior conduct less serious, it was not unreasonable to treat it in the
manner set forth in the guidelines, as serious, particularly since NunÞez committed
fraud to avoid detection after reentering the country. Accordingly, for the
aforementioned reasons, we affirm NunÞez’s sentence.
AFFIRMED.
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