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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11923
Non-Argument Calendar
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D.C. Docket No. 4:11-cr-00043-HLM-WEJ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
LUIS HERNANDEZ-NAVA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(November 21, 2012)
Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
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Luis Hernandez-Nava pled guilty to reentry of a deported alien, in violation
of 8 U.S.C. §§ 1326(a), (b)(2), and was sentenced to a prison term of 24 months.
He appeals his sentence, which was at the low end of the Guidelines sentence
range of 24-30 months, presenting one issue: whether the sentence is unreasonable
on the ground the District Court failed to account for the “overstatement” of his
criminal history in the presentence report. He represents that reliable information
indicated that his criminal history category of IV substantially over-represented
the seriousness of his actual criminal record. He contends that, because most of
his offenses were related to the fact that he was attempting to hide his illegal status
in the United States, a downward departure was justified. Further, he implicitly
argues that he was entitled to a downward variance because his sentence was
substantively unreasonable.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct.
586, 591, 169 L.E.2d 445 (2007). The District Court was required to impose a
sentence “sufficient, but not greater than necessary to comply with the purposes”
listed in 18 U.S.C. § 3553(a)(2), 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
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conduct. See 18 U.S.C. § 3553(a)(2). In imposing Hernandez-Nava’s sentence,
the court had to also consider the nature and circumstances of the offense, the
history and characteristics of the defendant, the kinds of sentences available, the
applicable guideline range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the need to
provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
In reviewing the reasonableness of a sentence, we first ensure that the
sentence is procedurally reasonable. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Then,
we examine whether the sentence is substantively reasonable in light of the totality
of the circumstances. Id. A sentence imposed well below the statutory maximum
penalty is an indicator of a reasonable sentence. See United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008). We reverse only if left with the 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), cert. denied, 131 S.Ct. 1813 (2011).
If reliable information indicates that a defendant’s criminal history category
substantially over-represents the seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit other crimes, a downward departure
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may be warranted. U.S.S.G. § 4A1.3(b)(1). We discussed the procedure for
properly departing downward under that section in United States v. Smith, 289
F.3d 696, 708-09 (11th Cir. 2002), a case involving a cross-appeal by the
Government challenging the departure decision itself.
Generally, however, a defendant may not appeal the court's refusal to depart
downward. United States v. Baker, 19 F.3d 605, 614-15 (11th Cir. 1994). A
defendant may appeal the court's failure to downward depart on the ground that
the court erroneously believed it lacked the authority to depart, but we will assume
that the court understood it had authority to depart downward where, as here, there
is no indication that it misapprehended its authority. See id. at 615 (erroneous
belief); United States v. Hansen, 262 F.3d 1217, 1255 (11th Cir. 2001)
(misapprehending authority).
Hernandez-Nava’s 24-month sentence is reasonable in light of the record
and the § 3553(a) factors. The sentence was at the bottom of the applicable
guideline range; we ordinarily expect such a sentence to be reasonable. See
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Considering
Hernandez-Nava’s history and propensity for breaking the law and violating his
probation, the court reasonably found that the criminal history category of IV was
appropriate and not excessive in light of his criminal record. Having given
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considerable weight to Hernandez-Nava’s criminal history and repeated violations
of law, the court also did not give undue deference to the guideline range.
Finally, while the court was authorized to downwardly depart from the
criminal history category of IV if it found the category substantially over-
represented the seriousness of Hernandez-Nava’s criminal history, the court here
found such a departure unwarranted. There was no indication that the court
misapprehended its authority to depart downward, only that it concluded
Hernandez-Nava’s criminal history did not merit such treatment under U.S.S.G.
§ 4A1.3(b)(1). This decision is not reviewable in light of the foregoing.
Hernandez-Nava has not met his burden of showing that his sentence is
unreasonable. It is accordingly,
AFFIRMED.
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