[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 15, 2008
No. 08-11497
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-20977-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESTER ALFRED BARCOE,
a.k.a. William O’Neil,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 15, 2008)
Before CARNES, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Lester Alfred Barcoe appeals his 77-month sentence imposed after he
pleaded guilty to having been found in the United States after having previously
been deported from the United States, in violation of 8 U.S.C. §§ 1326(a) and
1326(b)(2). Barcoe argues that his within-Guidelines sentence was unreasonable
because his family circumstances are such that the district court should have
granted a departure from the Guidelines. For the reasons stated below, we affirm.
We review the district court’s final sentence for reasonableness under an
abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179, 1189 (11th
Cir. 2008) (citing Rita v. United States, 127 S.Ct. 2456, 2465 (2007)). We must
first ensure that the district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence. Gall v. U.S., 522 U.S. __, 128 S.Ct. 586, 597 (2007). If the
district court’s sentencing decision is procedurally sound, we must then consider
the “substantive reasonableness of the sentence imposed, under an abuse-of-
discretion standard,” based on the “totality of the circumstances.” Id. “The party
who challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both th[e] record and the factors in section 3553(a).”
2
United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation
omitted).
As an initial matter, we note that Barcoe does not claim any procedural error
in the determination of his sentence. The record demonstrates that the district
court correctly calculated the applicable Guidelines range, allowed both parties to
present arguments as to what they believed the appropriate sentence should be,
considered all of the § 3553(a) factors, and thoroughly explained its reasoning.
The district court’s sentencing decision was procedurally sound.
Next, we review the substantive reasonableness of the sentence and
conclude that Barcoe’s claim that the district court acted unreasonably in failing to
grant a departure based on his family circumstances is without merit. At
sentencing, Barcoe argued for mitigation based on his family obligations,
including his responsibilities to his three children in the United States and the
recent death of his father and grandfather. After this allocution, the district court
considered Barcoe’s family situation, but found that this mitigating factor was
outweighed by the other § 3553(a) factors, including the Guideline range,
Barcoe’s criminal history that was not taken into account by the Guidelines, and
Barcoe’s history of illegally returning to this country. The district court placed
special emphasis on Barcoe’s criminal history, and it concluded that 77 months’
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imprisonment – which was the lowest within-Guidelines sentence available and far
below the statutory maximum1 – is reasonable. We find no abuse of discretion in
the determination that a sentence at the low end of the Guidelines is substantively
reasonable.
In short, Barcoe’s within-Guidelines sentence is neither procedurally nor
substantively unreasonable, and the district court did not abuse its discretion in
imposing it. For the foregoing reasons, Barcoe’s sentence is AFFIRMED.
1
Based upon Barcoe’s offense level of 21 and criminal history category of VI, the
presentence report calculated a Guideline range of 77-96 months. The statutory maximum is 20
years and there is no statutory minimum. 8 U.S.C. § 1326(b)(2).
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