[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10654 ELEVENTH CIRCUIT
AUGUST 7, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00171-CR-01-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIMBANO GALINDO-LARA,
a.k.a. Jorge Fernandez Mendez,
a.k.a. Limbrano Galindo,
a.k.a. Jorge Garcia-Mendez,
a.k.a. Jorge Galindo-Mendez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 7, 2009)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
In United States v. Galindo-Lara, 278 Fed.Appx. 908 (11th Cir. 2008), we
vacated appellant’s prison sentence of 37 months,1 an upward departure from the
Guidelines sentence range, and remanded the case for resentencing on the ground
that the district court failed to follow the proper procedure for making a guided
departure under U.S.S.G. § 4A1.3, i.e., the court failed sufficiently to explain its
upward departure. On remand, the district court entered a written order providing
further elaboration on how it arrived at appellant’s sentence. The court stated that
the Guidelines sentence range understated the severity of appellant’s criminal
history—he had three previous uncredited drug convictions—and that he had been
deported seven times prior to committing the instant offense. The court therefore
concluded that the sentence it had imposed was appropriate under the
circumstances. Appellant once more appeals, presenting two arguments. We
consider them in order.
I.
Appellant argues that the district court imposed a substantively unreasonable
sentence. He observes that his prior criminal convictions and deportations
occurred during a particular period of time during which he was a very different
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Appellant was sentenced on a plea of guilty to being an alien who illegally re-entered
the United States after being removed, in violation of 8 U.S.C. § 1326(a) and (b)(2).
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person and that he came to the United States most recently to make money to treat
his sick daughter. He also observes that the Government recommended a much
lower sentence than the court imposed.
We review a sentence for unreasonableness under a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. ___, 128 S.Ct. 586, 591, 169
L.Ed.2d. 445 (2007). A sentence is substantively unreasonable “if it does not
achieve the purposes of sentencing stated in [18 U.S.C.] § 3553(a).” United States
v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The burden of establishing that the
sentence is unreasonable in light of the record and the § 3553(a) factors lies with
the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005).
Section 3553(a) provides that district courts must consider, inter alia, (1) the
applicable guideline range; (2) the nature and circumstances of the offense; (3) the
history and characteristics of the defendant; (4) the need for the sentence imposed
to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (5) the need for adequate deterrence to
criminal conduct; (6) protection of the public from further crimes of the defendant;
and (7) the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a).
“The weight to be accorded any given § 3553(a) factor is a matter committed to the
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sound discretion of the district court, and [this court] will not substitute [its]
judgment in weighing the relevant factors.” United States v. Amedeo, 487 F.3d
823, 832 (11th Cir. 2007) (quotations and alterations omitted).
Appellant’s sentence was not substantively unreasonable because he has had
three prior drug convictions and an extensive history of illegally re-entering the
United States. Therefore, the district court did not abuse its discretion in
sentencing appellant to 37 months’ imprisonment.
II
Appellant argues that the district court erred by failing to elicit objections
from the parties following the issuance of its written order on remand. Thus, we
should vacate the sentence and remand for further sentencing proceedings in order
to provide the parties with an opportunity to raise objections.
Following imposition of a sentence, district courts must elicit fully
articulated objections to the court’s findings of fact and conclusions of law. United
States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990), overruled on other grounds,
United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc). “A remand is
unnecessary, however, when the record on appeal is sufficient to enable review.”
United States v. Campbell, 473 F.3d 1345, 1347 (11th Cir. 2007). “Under the law
of the case doctrine, both the district court and the court of appeals are bound by
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findings of fact and conclusions of law made by the court of appeals in a prior
appeal of the same case unless (1) a subsequent trial produces substantially
different evidence, (2) controlling authority has since made a contrary decision of
law applicable to that issue, or (3) the prior decision was clearly erroneous and
would work manifest injustice.” United States v. Stinson, 97 F.3d 466, 469 (11th
Cir. 1996).
As an initial matter, we note that this is appellant’s second appeal of his
sentence. The first time appellant appeared before us he raised the issue of the
district court’s failure to elicit objections to the imposed sentence. See United
States v. Galindo-Lara, 278 Fed. Appx. 908, 909-10 (11th Cir. 2008). In response,
we held that a remand on this matter was inappropriate because the record
permitted a meaningful appellate review. See id. Because none of the exceptions
to the law of the case doctrine are applicable in this case, we are bound by this
prior holding.
AFFIRMED.
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