[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14330 ELEVENTH CIRCUIT
FEB 22, 2012
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:10-cr-14034-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICENTE GUTIERREZ,
a.k.a. Juan Jose Pavon-Cabrera,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(February 22, 2012)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Vicente Gutierrez appeals his sentence of imprisonment for 57 months,
which was imposed on resentencing after an earlier plea of guilt to one count of
illegal reentry after deportation. 8 U.S.C. § 1326(a). Gutierrez argues that his
sentence is substantively unreasonable because the district court sentenced him as
if he had been convicted of a crime of violence and varied upward from the
guideline range of 15 to 21 months of imprisonment as if and to the same extent
that he had a conviction for a crime of violence before deportation. Gutierrez
contends that neither his criminal history nor his personal characteristics
warranted the upward variance after weighing the relevant sentencing factors. 18
U.S.C. § 3553(a). We affirm.
We review all sentences for reasonableness under a deferential standard of
review for abuse of discretion. United States v. Sanchez, 586 F.3d 918, 935 (11th
Cir. 2009). The abuse-of-discretion standard “‘allows a range of choice for the
district court, so long as that choice does not constitute a clear error of judgment.’”
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quoting
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc)), cert.
denied, 131 S. Ct. 1813 (2011). A major variance requires more justification than
a minor one and the justification must be “‘sufficiently compelling to support the
degree of the variance.’” Id. at 1196 (quoting Gall v. United States, 552 U.S. 38,
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50, 128 S. Ct. 586, 597 (2007)). We will vacate a sentence based on such an
upward variance 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 sentences dictated
by the facts of the case.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.
2009) (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).
Gutierrez’s sentence is reasonable. The district court considered the
statutory sentencing factors, 18 U.S.C. § 3553(a), and Gutierrez’s arguments at
sentencing. The district court also adhered to our mandate and did not sentence
Gutierrez as if he had been convicted of a crime of violence. Gutierrez has an
extensive criminal history. He has been charged with second-degree rape of a
minor, second-degree stalking, driving under the influence, violating probation,
assault, failure to appear to serve jail time, and violating a protective order. Based
on this criminal history, the court did not abuse its discretion in determining that a
sentence within the guidelines range was insufficient, and that an upward variance
was necessary to promote respect for the law and deter future criminal conduct.
The district court did not abuse its discretion. We affirm Gutierrez’s sentence.
AFFIRMED.
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