[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16804
OCTOBER 30, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-00058-CR-RWS-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGACIANO PINEDA-PINEDA,
a.k.a. Yanez Salvador Pineda,
a.k.a. Pineda Sal Yanez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 30, 2009)
Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant-Appellant Rogaciano Pineda-Pineda appeals his 77-month
sentence for being an alien found in the United States without permission after
having previously been convicted of an aggravated felony and removed from the
United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). No reversible error
has been shown; we affirm.
Pineda-Pineda challenges the substantive reasonableness of the within-
guidelines sentence imposed. No error is claimed in the calculation of the 77 to
96-month guideline range.
Appellate review of the substantive reasonableness of a sentence–whether
inside or outside the guidelines range–is normally under an abuse-of-discretion
standard. Gall v. United States, 128 S.Ct. 586, 597 (2007). We have not decided
whether plain error review applies when, as here, the defendant did not object to
the sentence in the district court. We need not decide which standard applies
because Pineda-Pineda’s sentence was reasonable and thus was proper under either
standard of review.
Reasonableness review is deferential. A within-guidelines range sentence is
ordinarily expected to be reasonable, and the appellant bears the burden of
establishing the absence of reasonableness in the light of the record and the section
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3553(a) factors. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Pineda-Pineda argues that his family history, lack of education, history of
drug and alcohol addiction, and the “bottom-rung-dealer nature” of his three prior
felony convictions for possession with intent to distribute all show that section
3553(a) would have been satisfied by a below-guideline sentence.
The transcript of the sentencing hearing makes it clear that the district court
considered Pineda-Pineda’s arguments and the section 3553(a) factors; the district
court stated expressly that the arguments advanced by Pineda-Pineda warranted a
sentence at the low end of the guidelines, but no variance.
Pineda-Pineda failed to carry his burden of establishing that his sentence was
substantively unreasonable. We cannot say the 77-month low-end guideline range
sentence was “outside the range of reasonable sentences dictated by the facts of the
case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (internal
quotation marks omitted).
AFFIRMED.
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