[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 14, 2012
No. 11-14309 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:11-cr-14017-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE JIMINEZ-LOPEZ,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 14, 2012)
Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.
PER CURIAM:
Appellant Enrique Jiminez-Lopez appeals his 51-month high end of the
guideline range sentence, imposed after pleading guilty to one count of reentry of
a deported alien in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Jiminez-
Lopez argues that his sentence was substantively unreasonable because it is higher
than necessary to effectuate the purpose and intent of the § 3553(a) factors. He
emphasizes the immigration nature of his offense, his clean criminal history
outside of one prior conviction, and the unreasonably harsh result of the 16-level
increase based on his sole prior conviction.
This court reviews the reasonableness of a sentence under a deferential
abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128
S. Ct. 586, 591, 169 L. Ed. 2d 445 (2007). This Court may “set aside a sentence
only if we determine, after giving a full measure of deference to the sentencing
judge, that the sentence imposed truly is unreasonable.” United States v. Irey, 612
F.3d 1160, 1191 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011).
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In
imposing a particular sentence, the court must also consider the nature and
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circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guideline range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. Id.
§ 3553(a)(1), (3)-(7).
In reviewing the sentence, under the prism of abuse of discretion, this court
first ensures that the sentence was procedurally reasonable, meaning the district
court properly calculated the guideline range, treated the Guidelines as advisory
and not mandatory, considered the § 3553(a) factors, did not select a sentence
based on clearly erroneous facts, and adequately explained the chosen sentence.
Gall, 552 U.S. at 51, 128 S. Ct. at 597. Once the court determines that a sentence
is procedurally sound, it examines whether the sentence was substantively
reasonable in light of the totality of the circumstances. Id.
“The party challenging the sentence bears the burden to show it is
unreasonable in light of the record and the § 3553(a) factors.” United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir.), cert. denied, 131 S. Ct. 674 (2010).
Although this Court does not apply a presumption of reasonableness for sentences
falling within the guidelines range, “ordinarily [this court] would expect a
sentence within the Guidelines range to be reasonable.” United States v. Talley,
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431 F.3d 784, 788 (11th Cir. 2005). A sentence imposed well below the statutory
maximum penalty is another indicator of a reasonable sentence. See e.g., United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
This court reverses 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.” Irey, 612 F.3d at 1190 (quoting United States v.
Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). “The fact that the appellate court
might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S.
Ct. at 597.
Based on our review of the record, we conclude that Jiminez-Lopez’s 51-
month sentence is reasonable. The sentence was within the guideline range, and
we expect such a sentence to be reasonable. See Talley, 431 F.3d at 788. Though
Jiminez-Lopez points to the nonviolent nature of his charged offense and his
limited criminal history as mitigating factors, the court explicitly stated that it had
considered the statements of the parties, the presentence report, which included the
violent conduct underlying Jiminez-Lopez’s arrest, and the § 3553(a) factors.
Jiminez-Lopez also argues that the 16-level increase in his offense level is too
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harsh a punishment, but the increase is arrived at by following the Sentencing
Guidelines and none of the facts used to calculate Jiminez-Lopez’s range were
erroneous. In short, Jiminez-Lopez has not met his burden to show an abuse of
discretion. Accordingly, we affirm his sentence.
AFFIRMED.
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