United States v. Antonio Flores-Cruz

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14732 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 21, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:11-cr-00203-ODE-GGB-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

ANTONIO FLORES-CRUZ,
a.k.a. Roberto Garcia,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(June 21, 2012)

Before DUBINA, Chief Judge, MARCUS and BLACK, Circuit Judges.
PER CURIAM:

Appellant Antonio Flores-Cruz appeals his sentence of 46 months in prison,

imposed at the low end of the applicable guideline range, after pleading guilty to 1

count of illegal reentry of a previously deported alien subsequent to an aggravated

felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Flores-Cruz

argues that his sentence was unreasonable because the district court failed to

consider adequately the relative lack of seriousness of a prior felony conviction

used to enhance his guideline sentencing range under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).

“We review the final sentence imposed by the district court for

reasonableness.” United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007).

Reasonableness of a sentence is reviewed under a deferential abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L. Ed.

2d 445 (2007). The party challenging the sentence bears the burden of showing

that it was unreasonable in light of the record and the factors in 18 U.S.C.

§ 3553(a). United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert. denied,

131 S. Ct. 674 (2010).

The district court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2),

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including the need to reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense, deter criminal conduct, and protect

the public from the defendant’s future criminal conduct. See 18 U.S.C.

§ 3553(a)(2). In imposing a particular sentence, the court must also consider,

among other factors, the nature and circumstances of the offense, the history and

characteristics of the defendant, the kinds of sentences available, the applicable

guideline range, and the pertinent policy statements of the Sentencing

Commission. See generally id. § 3553(a)(1), (3)-(7).

We first review the sentence for 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–including an explanation for any deviation from the Guidelines range.”

Gall, 552 U.S. at 51, 128 S. Ct. at 597. Once we determine that a sentence is

procedurally sound, we examine whether the sentence was substantively

reasonable in light of the totality of the circumstances. United States v. Shaw, 560

F.3d 1230, 1237 (11th Cir. 2009).

“The review for substantive unreasonableness involves examining the

totality of the circumstances, including an inquiry into whether the statutory

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factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). The “weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district

court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008)

(quotation omitted). Although we do not automatically presume a sentence falling

within the guideline range to be reasonable, we ordinarily expect such a sentence

to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). An

indication of a reasonable sentence is a sentence imposed well below the statutory

maximum sentence. See Gonzalez, 550 F.3d at 1324. (noting that the sentence

imposed was “well below” the statutory maximum sentence). We will not “simply

substitute [our] judgment for that of the sentencing court.” United States v.

McBride, 511 F.3d 1293, 1297 (11th Cir. 2007). We will not reverse unless 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. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)

(internal quotation marks omitted), cert. denied, 131 S. Ct. 1813 (2011). A district

court commits a clear error of judgment “when it considers the proper factors but

balances them unreasonably.” Id. at 1189.

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Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant is subject to a 16-level

increase in his offense level if he was previously deported after a conviction for a

crime of violence. A crime of violence includes such offenses as murder,

manslaughter, kidnapping, aggravated assault, robbery, arson, extortion, or any

other offense “that has as an element the use, attempted use, or threatened use of

physical force against the person of another.” Id. § 2L1.2 comment. (n.1(B)(iii)).

We conclude from the record that Flores-Cruz has failed to demonstrate that

the district court abused its discretion by sentencing him to a term of

imprisonment outside the range of reasonable sentences based on the facts of the

case. Furthermore, the court properly considered the implications of his prior

conviction, along with all other appropriate factors in § 3553(a). Accordingly, for

the aforementioned reasons, we affirm Flores-Cruz’s sentence.

AFFIRMED.