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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13029
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00003-AT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VALERIANO CRUZ-MENDOZA,
a.k.a. Valeriano Cruz,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 8, 2013)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Valeriano Cruz-Mendoza appeals his below-guidelines 32-month sentence,
which the district court imposed after he pled guilty to illegally reentering the
United States after removal. Cruz-Mendoza argues that his sentence was
substantively unreasonable. He argues that there is no empirical evidence to
support the severe 16-level guideline enhancement under § 2L1.2(b)(1)(A)(ii), for
illegal reentry following a felony conviction. In addition, he asserts that the fact
that prior convictions drive up both the offense level and the criminal history score
under the guidelines constitutes impermissible double counting. Finally, Cruz-
Mendoza argues that the court gave insufficient weight to the facts and
circumstances of his case, and abused its discretion by failing to fashion a more
lenient sentence.
We review the reasonableness of a defendant’s 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), and the party challenging the sentence bears the
burden of demonstrating that it is unreasonable, United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005). The district court must impose a sentence that is
sufficient, but not greater than necessary, to comply with the purposes of
sentencing listed in § 3553(a)(2), including the need to reflect the seriousness of
the offense, promote respect for the law, provide just punishment, deter criminal
conduct, protect the public, and provide needed educational or vocational training,
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or medical care. 18 U.S.C. § 3553(a)(2). The district court must also consider the
nature and circumstances of the offense, the defendant’s history and
characteristics, the kinds of sentences available, the applicable Guidelines range,
pertinent policy statements from the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need for restitution. Id. § 3553(a)(1),
(3)-(7).
Considering these standards, we affirm. Cruz-Mendoza’s arguments sound
solely in substantive reasonableness. He does not argue that the district court
failed to properly calculate his Guidelines range, treated the Guidelines as
mandatory, failed to consider the § 3553(a) factors, imposed his sentence based
upon clearly erroneous facts, or failed to adequately explain his sentence. Rather,
he argues that, in light of the 16 offense-level-enhancement and a variety of
mitigating factors, his sentence exceeds that which is necessary to achieve the
appropriate sentencing objectives.
Cruz-Mendoza’s argument regarding the lack of empirical evidence
supporting the 16 offense-level-enhancement under § 2L1.2(b)(1)(A)(ii) is raised
for the first time on appeal and we find no error, plain or otherwise. Even if Cruz-
Mendoza is correct that the enhancement is not supported by an empirical basis,
this fact alone would not invalidate its application or otherwise render his sentence
unreasonable. See United States v. Snipes, 611 F.3d 855, 870 (11th Cir. 2010)
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(addressing U.S.S.G. § 2T1.1, and holding that the absence of empirical evidence
is not an independent ground that requires the wholesale invalidation of a
guideline). Rather, the district court was permitted, but not required, to consider
any lack of empirical evidence as a relevant factor when imposing Cruz-
Mendoza’s sentence. See Snipes, 611 F.3d at 870. Thus, the district court did not
err in applying the § 2L1.2(b)(1)(A)(ii) enhancement.
Nor did the district court’s application of the 16 offense-level-enhancement
impermissibly double count Cruz-Mendoza’s criminal history. See United States
v. Adeleke, 968 F.2d 1159, 1160-61 (11th Cir. 1992). Double counting is permitted
if the Sentencing Commission intended that result and the two guidelines sections
serve different purposes. Id. at 1161. Here, criminal history categories punish
recidivists, and § 2L1.2(b)(1)(A) deters aliens from reentering the country after
committing felonies. Id. Thus, double counting was permitted in this case.
Finally, we must reject Cruz-Mendoza’s argument that that his sentence is
substantively unreasonable. As the district court found, Cruz-Mendoza’s criminal
history involved a violent criminal act, he was a recidivist, and he was on “very
clear notice” of the penalties he might face for returning to this country. The court
reasonably found that a 32-month sentence would sufficiently address
demonstrated needs for deterrence and respect for the law. See 18 U.S.C.
§ 3553(a)(1), (2)(A)-(B); (R1-32 at 24-25). Moreover, the 32-month sentence fell
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below the bottom of Cruz-Mendoza’s Guidelines range and appreciably below the
20-year statutory maximum, further suggesting its substantive reasonableness. See
8 U.S.C. § 1326(b)(2) (establishing a 20-year maximum sentence of imprisonment
for an alien that illegally reenters the United States after having been removed
subsequent to a conviction for an aggravated felony). Cruz-Mendoza’s 32-month
sentence fell within the range of reasonable sentences that the district court could
have imposed and we cannot say the court’s conclusion that Cruz-Mendoza’s
sentence was “sufficient,” but “not greater than necessary to penalize for the
offense involved here” was erroneous.
AFFIRMED.
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