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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16082
Non-Argument Calendar
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D.C. Docket No. 0:11-cr-60139-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JOSE PEREZ-ZUNIGA,
llllllllllllllllllllllllllllllllllllll llDefendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 12, 2012)
Before TJOFLAT, PRYOR, and FAY, Circuit Judges.
PER CURIAM:
Perez-Zuniga appeals his 60-month sentence, imposed above the applicable
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guideline range, after he pled guilty to illegal reentry. On appeal, he argues that:
(1) his sentence is substantively unreasonable; and (2) the district court erred by
failing to notify him of its intent to impose a sentence above the guideline range.
For the reasons set forth below, we affirm Perez-Zuniga’s sentence.
I.
Perez-Zuniga pled guilty to illegal reentry, in violation 18 U.S.C. § 1326(a)
and (b)(2). According to the presentence investigation report (“PSI”), Perez-
Zuniga, who is a citizen of Honduras, illegally reentered the United States on
March 4, 2011, after having been previously removed on three separate occasions.
The probation officer assigned Perez-Zuniga a base offense level of eight,
pursuant to U.S.S.G. § 2L1.2. After a four-level increase, under § 2L1.2(b)(1)(D),
based on his prior felony conviction, and a two-level reduction for acceptance of
responsibility, under § 3E1.1(a), his total offense level was ten.
As to his criminal history, Perez-Zuniga received six criminal history points
based on prior convictions for offenses, including: (1) attempting to purchase
cocaine; (2) trespassing on property after a warning (six separate convictions);
(3) shoplifting; and (4) illegal reentry. Further, Perez-Zuniga received two
additional criminal history points, under U.S.S.G. § 4A1.1(d), because he
committed the instant illegal reentry offense while serving a one-year term of
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supervised release. In total, Perez-Zuniga received eight criminal history points,
and his criminal history category was IV.
Perez-Zuniga also had several charges for which he had not been convicted.
Based on an offense level of 10 and a criminal history category of IV, Perez-
Zuniga’s guideline range was 15 to 21 months’ imprisonment. The statutory
maximum term of imprisonment was 20 years (240 months).
At the sentencing hearing, the court found that Perez-Zuniga was a
candidate for “an upward variance” based on his criminal history. Specifically,
the court stated, “[h]e doesn’t seem to get the point that he is not welcome[] in this
country, [and] when he has been in this country, he hasn’t been a law-abiding
illegal alien.” The court noted his prior conviction for attempting to purchase
cocaine and his numerous trespassing convictions, which were all committed
between the ages of 26 and 28, and further, the court noted that it did not appear
that Perez-Zuniga would serve any “jail time” for those offenses. Additionally, the
court referenced his prior shoplifting and illegal reentry convictions, as well as the
other criminal conduct for which he was not convicted, including aggravated
battery, trespassing, and possession of burglary tools.
In discussing the § 3553 factors, the court explained its reasons for Perez-
Zuniga’s sentence by stating:
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So it’s not as if he hasn’t been warned. It’s not as if he hasn’t been
given a break. I don’t know what else to do but to go above the
guideline sentence in this case in order to satisfy the [§] 3553(a)
factors, including considering the nature and circumstances of the
instant offense. He’s a repeat offender.
History and characteristics of the defendant: He’s demonstrated that
he’s worked himself up to a [c]ategory [IV] at a relatively young age.
To promote respect for the law: He obviously does not respect the law
as demonstrated by his repeated criminal behavior. To deter him: I
have no confidence that a sentence within the guideline range would
be sufficient to deter [Perez-Zuniga] from just turning around and
coming back to the United States.
Further, the court noted that it had considered the statements of all the parties, the
PSI, which contains the advisory guidelines, and the statutory factors. Ultimately,
the court imposed a 60-month sentence. Perez-Zuniga objected to the “procedure
and [] reasonableness” of the sentence.
II.
We review the reasonableness of a sentence 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). Under the abuse of discretion standard, the sentence will
be affirmed unless the district court made a clear error of judgment. United States
v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct.
1813 (2011). “We will not second guess the weight (or lack thereof)” that the
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district court accorded to a given § 3553(a) sentencing factor as long as the
sentence ultimately imposed is reasonable in light of all the circumstances
presented. United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation
omitted), cert. denied, 131 S.Ct. 2962 (2011). The party challenging a sentence
bears the burden of establishing that it is unreasonable. United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005).
We review the substantive reasonableness of a sentence in light of the
record and the § 3553(a) factors. Id. Under § 3553(a), the sentencing court shall
impose a sentence “sufficient, but not greater than necessary” to comply with the
purposes of sentencing set forth in § 3553(a)(2), which include 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 crimes. 18 U.S.C. § 3553(a)(2). Other factors to be considered in
imposing the sentence include the nature and circumstances of the offense, the
history and characteristics of the defendant, the available sentences, the
Guidelines’ policy and applicable range, the need to avoid unwarranted sentence
disparities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
While the district court must consider these factors in imposing the
sentence, it is not required to discuss each factor. Talley, 431 F.3d at 786. “A
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district court’s unjustified reliance on a single § 3553(a) factor may be a
‘symptom’ of an unreasonable sentence.” United States v. Williams, 526 F.3d
1312, 1322 (11th Cir. 2008). However, it is within the district court’s discretion to
determine how much weight to give to each § 3553(a) factor, and where the court
has explained why it “attached great weight to one factor,” we have held the
sentence to be reasonable. Id. at 1322-23. Further, the district court may consider
facts that already have been taken into account in calculating the defendant’s
guideline range. See id. at 1324 (holding that the district court could consider the
defendant’s prior offenses in deciding to impose an upward variance, even though
those offenses already were included in the defendant’s criminal history score);
see also 18 U.S.C. § 3661 (“No limitations shall be placed on the information
concerning the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence.”). Finally, the reasonableness of a
sentence may be indicated when the sentence imposed is well below the statutory
maximum sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008).
Perez-Zuniga’s sentence was substantively reasonable in light of the record
and the § 3553(a) factors. His 60-month sentence was well below the 240-month
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statutory maximum sentence, indicating that it was a reasonable sentence. See
Gonzalez, 550 F.3d at 1324. The sentence, moreover, met the goals encompassed
within § 3553(a). Specifically, as the sentencing court discussed, Perez-Zuniga
had several prior criminal convictions, and he had been charged with several other
criminal offenses, most of which occurred during his mid to late twenties. Further,
Perez-Zuniga’s criminal history included convictions for attempting to purchase
cocaine and shoplifting, as well as numerous trespassing convictions, and he had
also been charged with other criminal offenses, such as drug possession and
aggravated battery, that did not result in convictions. Although the guideline
calculations had already accounted for several of Perez-Zuniga’s prior
convictions, the district court was still permitted to consider his criminal history in
determining an appropriate sentence. See Williams, 526 F.3d at 1324.
Moreover, contrary to Perez-Zuniga’s argument on appeal, the district court
did not base its sentencing decision solely on his criminal history. Specifically, as
to the nature and circumstances of the offense, the court noted that Perez-Zuniga
was a “repeat offender,” as this was not his first illegal reentry offense. Further, as
to his personal history and characteristics, the court noted that he had obtained a
criminal history category IV at a relatively young age. The court also emphasized
that, due to his “repeated criminal behavior,” an above-guideline sentence was
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necessary to promote respect for the law and provide an adequate deterrence. The
record showed that Perez-Zuniga illegally reentered the United States while he
was already serving a term of supervised release, and after he had been removed
on three prior occasions. These circumstances support the district court’s finding
that he had shown a lack of respect for the law and that an upward variance from
the guideline range was necessary to provide an adequate deterrence. Based on
the above, Perez-Zuniga’s sentence was reasonable, and we will not re-weigh the
§ 3553(a) factors. See Snipes, 611 F.3d at 872.
III.
When a defendant raises a sentencing challenge for the first time on appeal,
we review only for plain error. United States v. Aguillard, 217 F.3d 1319, 1320
(11th Cir. 2000). To prevail under a plain-error standard, the appellant must show
(1) an error that (2) is plain, (3) affects substantial rights, and (4) seriously affects
the fairness, integrity, or public reputation of judicial proceedings. United States
v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).
If the defendant’s criminal history category substantially under-represents
the seriousness of his criminal history or the likelihood that he will commit other
crimes, an upward departure may be warranted. U.S.S.G. § 4A1.3(a)(1). Under
Federal Rule of Criminal Procedure 32(h),
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Before the court may depart from the applicable sentencing range on
a ground not identified for departure either in the [PSI] or in a party’s
prehearing submission, the court must give the parties reasonable
notice that it is contemplating such a departure. The notice must
specify any ground on which the court is contemplating a departure.
However, where the sentencing court determines that the applicable guidelines
range does not adequately address the § 3553(a) factors, it may impose a
reasonable sentence outside the guidelines range. United States v. Irizarry, 458
F.3d 1208, 1211-12 (11th Cir. 2006). A district court need not notify the parties in
advance of sentencing regarding its intent to impose such a variance because the
“parties are inherently on notice that the sentencing guidelines range is advisory
and that the district court must consider the factors expressly set out in [§] 3553(a)
when selecting a reasonable sentence between the statutory minimum and
maximum.” Id. at 1212 (noting that a variance is based on the “court’s
consideration of the [§] 3553(a) factors”).
Because Perez-Zuniga did not argue before the district court that it was
required to notify him, prior to sentencing, of its intent to impose a sentence above
the advisory guideline range, we review only for plain error. See Aguillard, 217
F.3d at 1320. The district court did not plainly err in failing to provide notice to
Perez-Zuniga of its intent to impose a sentence above the applicable guideline
range. First, although the court relied, in part, on Perez-Zuniga’s criminal history,
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it explicitly stated that it was imposing an “upward variance.” Second, the court
did not reference either § 4A1.3, which allows for a departure, or Rule 32, which
contains the notice requirements for imposition of departures. Third, the reasons
given by the court for its deviation from the guideline range all referred to
§ 3553(a) factors—namely, the nature and circumstances of the offense, Perez-
Zuniga’s history and characteristics, and the need to promote respect for the law
and to provide an adequate deterrence. At no point did the court state that its
sentence was based on a belief that Perez-Zuniga’s criminal history category
underrepresented his criminal history or the likelihood that he will commit other
crimes. Thus, the court imposed a variance, not a departure, and it was not
required to provide advance notice under Rule 32(h). See Irizarry, 458 F.3d at
1211-12.
For the foregoing reasons, we affirm Perez-Zuniga’s sentence.
AFFIRMED.
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