[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10425 ELEVENTH CIRCUIT
DECEMBER 16, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-10069-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE MARTINEZ-GARCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 16, 2009)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Jorge Martinez-Garcia appeals the reasonableness of his 36-month sentence
imposed for conspiracy to encourage and induce aliens to enter the United States, 8
U.S.C. § 1324(a)(1)(A)(v)(I). No reversible error has been shown; we affirm.1
We review a final sentence for procedural and substantive reasonableness.
United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008), cert. denied, 129
S.Ct. 2848 (2009). A sentence may be procedurally unreasonable if the district
court fails to consider the appropriate statutory factors or explain adequately the
chosen sentence. Id. We evaluate the substantive reasonableness of a sentence,
whether inside or outside the guidelines range, under a deferential abuse-of-
discretion standard. Gall v. United States, 128 S.Ct. 586, 597 (2007).
The party challenging the reasonableness of the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both the record and the
18 U.S.C. § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005). Under section 3553(a), a district court should consider the nature and
circumstances of the offense, the history and characteristics of the defendant, the
need for the sentence to provide adequate deterrence, respect for the law, and
1
Martinez-Garcia’s sentence was twice the high end of the applicable 12-to-18-month
guidelines range.
2
protection of the public, policy statements of the Sentencing Commission,
provision for the medical and educational needs of the defendant, and the need to
avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).
We conclude that Martinez-Garcia’s sentence is reasonable. Although his
36-month sentence varied upward from the top of the advisory guidelines range by
18 months, the sentence was well below the 10-year statutory maximum he faced.
See 8 U.S.C. § 1324(a)(1)(B)(i); United States v. Valnor, 451 F.3d 744, 751-52
(11th Cir. 2006) (affirming an upward variance and observing that the ultimate
sentence was appreciably below the statutory maximum). In addition, the district
court explained that it considered the section 3553(a) factors and that a sentence
above the guidelines range was appropriate in Martinez-Garcia’s case. The
sentencing court specifically noted that (1) Martinez-Garcia committed the instant
alien smuggling offense only 14 months after illegally entering the United States;
(2) the boat containing the 11 illegal aliens contained an excessive amount of fuel,
creating a dangerous situation; and (3) alien smuggling compromises the security
of the United States and impacts negatively on the United States Coast Guard’s
ability to perform other vital duties. The court also noted the importance of
deterring Martinez-Garcia and protecting the public from further crimes by him.
See 18 U.S.C. § 3553(a)(1), (2)(A)-(C).
3
Martinez-Garcia argues that the district court based its sentencing decision
on its own views about the seriousness of the offense and not on Martinez-Garcia’s
acts in the offense.2 But, that the court considered both Martinez-Garcia’s acts
(including his illegal entry into the United States) in addition to the seriousness of
the offense, is clear. Both factors were relevant considerations. And “[t]he weight
to be accorded any given [section] 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007) (internal quotation and citation omitted).
Martinez-Garcia also argues that the court failed to consider the need to
avoid unwarranted sentencing disparities between similarly-situated defendants
because other alien-smuggling defendants sentenced by the same judge on the
same day as he received within-range sentences. But the “avoidance of
unwarranted disparities was clearly considered by the Sentencing Commission
when setting the Guidelines ranges”; so, a district court necessarily gives weight
and consideration to the need to avoid unwarranted disparities when it correctly
2
Martinez-Garcia also contends that the court impermissibly based its sentence on the
need to deter the local community. But nothing indicates that the court based its sentence on
such reasoning: instead, the court noted the need to deter Martinez-Garcia and to protect the
community from further crimes by him.
4
calculates and carefully reviews the guidelines range. See Gall, 128 S.Ct. at 599.3
We must give due deference to the district court’s determination that Martinez-
Garcia’s history and characteristics, the nature and seriousness of his offense, and
the need for deterrence warranted the extent of the variance here. See United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008); Gall, 128 S.Ct. at 597
(explaining that a sentencing judge “must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the degree of the
variance”).
Based on the evidence in the record, we conclude that Martinez-Garcia’s
sentence was reasonable and that the district court adequately justified its upwardly
variant sentence. Although Martinez-Garcia disagrees with the district court’s
assessment of several of the section 3553(a) factors, we -- on this record -- cannot
say that the court’s careful consideration of the factors and its conclusion were
unreasonable.
AFFIRMED.
3
Moreover, the sentencing court was aware of the need to avoid unwarranted disparities
as evidenced by its comment that Martinez-Garcia’s sentence was substantially smaller than the
sentence imposed on his codefendant. And when sentencing other alien-smuggling defendants,
the court expressly distinguished their circumstances from other defendants sentenced earlier
that day for similar offenses.
5