[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 7, 2009
No. 08-14359 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00095-CR-HL-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO TORRES-SANTOS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(October 7, 2009)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Jose Antonio Torres-Santos appeals his above-
guidelines-range sentence imposed after he pleaded guilty to illegal re-entry into
the United States, in violation of 8 U.S.C. § 1326(a)(2) and (b)(1). No reversible
error has been shown; we affirm.
Defendant, a citizen of Mexico, was deported back to Mexico in October
1998 and again in September 2000. Defendant again reentered the United States
-- without seeking or obtaining permission to do so -- and was found by federal
agents at the Bibb County jail in Macon, Georgia, in October 2007 (Defendant was
being held on pending charges of armed robbery and terroristic threats).
Defendant’s guideline imprisonment range was zero to six months; the statutory
maximum for the offense is ten years. The sentencing court imposed a sentence of
36 months’ imprisonment to be followed by a three-year term of supervised
release.
Defendant argues on appeal that his sentence was substantively
unreasonable: the sentence imposed was excessively harsh and greater than
necessary to comply with the purposes of 18 U.S.C. § 3553(a)(2). Defendant also
maintains that the district court’s statement of reasons in support of the sentence
imposed was insufficient under 18 U.S.C. § 3553(c) to support the extent of the
2
departure.
Before imposing the 36-month sentence, the district court said:
After considering the factors at 18 U.S.C. United States Code
Section 3553(a)(2), I’m of the opinion that an upward variance is
warranted in this case to reflect the seriousness of the offense, to
promote respect for law, and to provide just punishment for the
offense. A greater sentence should also afford adequate deterrence to
criminal conduct and protect the public from further crimes from this
defendant.
I note that [sic] the defendant’s history of deportations and illegal
reentries into the country, and I also note the commission of criminal offense
while in the United States as an illegal alien.
Appellate review of the substantive reasonableness of a sentence -- whether
inside or outside the guidelines range -- is under an abuse-of-discretion standard.
Gall v. United States, 128 S.Ct. 586, 597 (2007). This review is deferential. As
Gall explains, id., an appellate court reviewing a sentence for reasonableness must
take into account the totality of the circumstances. No presumption of
unreasonableness applies to an outside-guidelines-range sentence. The extent of
deviation, along with the other circumstances, may be considered; but due
deference must be accorded the district court’s decision that the section 3553(a)
factors justify the extent of the variance. And it is the appellant who bears the
burden of establishing the absence of reasonableness in the light of the record and
the section 3553(a) factors. See United States v. Gonzalez, 550 F.3d 1319, 1324
3
(11th Cir 2008), citing United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Among the section 3553(a) factors that must be considered in crafting a
reasonable sentence are the need to reflect the seriousness of the offense, to
promote respect for the law, to afford adequate deterrence to criminal conduct, and
to protect the public from further crimes of the defendant. See 18 U.S.C. §
3553(a). The district court stated expressly that these factors warranted the
upward-variant sentence imposed. That Defendant takes issue -- or even if we
were to take issue -- with the weight that the district court gave to the section
3553(a) factors, without more, supports no reversal. See Gall, 128 S.Ct. at 597.
“[W]e will only reverse a procedurally proper sentence if we are 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. McBride, 511 F.3d 1293, 1297-98 (11th Cir. 2007) (internal quotation and
citation omitted).
Defendant has failed to carry his burden of establishing that his sentence was
substantively unreasonable. Under an abuse of discretion standard of review, we
cannot say that the 36-month sentence -- albeit much above the 0-to-6-month
guideline range -- was substantively unreasonable in the totality of the
4
circumstances.
Nor are we persuaded that the district court’s statement of reasons in support
of the variant sentence was procedurally infirm. Although the district court’s
explanation may have been brief, the reasons for the above-guidelines sentence
were stated. The district court explanation was sufficient to satisfy section
3553(c).
AFFIRMED.
5