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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12635
Non-Argument Calendar
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D.C. Docket No. 4:11-cr-00051-HLM-WEJ-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllll lllllllllllllPlaintiff-Appellee,
versus
ANGEL MENDOZA-BUSTOS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 25, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Angel Mendoza-Bustos appeals his 48-month sentence, imposed at the low
end of the guideline range, for re-entry of a deported alien, in violation of 8 U.S.C.
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§ 1326(a), (b)(2).1 On appeal, Mendoza-Bustos argues that his sentence for this
conviction was substantively unreasonable because only one prior conviction had
skewed his guideline range. After careful review of the parties’ briefs and the
record, we affirm.
We review the procedural and substantive reasonableness of a sentence
under a deferential abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). We review the ultimate
sentence and not each decision made during the sentencing process. United States
v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
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. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). A
sentence imposed well below the statutory maximum penalty is another indicator
of a reasonable sentence. Id. “The party challenging the sentence bears the
burden to show it is unreasonable in light of the record and the § 3553(a) factors.”
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert. denied, 131 S. Ct.
674 (2010). We examine whether the sentence was substantively reasonable in
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Mendoza-Bustos does not appeal the substantive reasonableness of his 6-month
revocation sentence, which the district court ordered to run consecutively with this 48-month
sentence.
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light of the totality of the circumstances. Id. A district court abuses its discretion
when it balances the § 3553(a) factors unreasonably or places unreasonable weight
on a single factor. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en
banc), cert. denied, 131 S. Ct. 1813 (2011). We reverse only if “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.” Id. at
1190 (quotation omitted).
Mendoza-Bustos received a 16-point enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(I) for his 2004 conviction for possession with intent to distribute
heroin. This conviction also resulted in a criminal history category of III.
Mendoza-Bustos argues that the 16-point enhancement resulted in an
unreasonable sentence, particularly because this same past conduct had already
increased his criminal history points. But we have previously considered a similar
“double counting” argument and upheld the § 2L1.2 enhancement. United States
v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992). In general, double counting is
permissible if the Sentencing Commission intended the result and each guideline
section addresses conceptually separate sentencing purposes. Specifically
addressing the § 2L1.2 enhancement, we held that the Commission intended prior
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felonies to count against defendants under both the criminal history section and
§ 2L1.2 based on Application Note 5 (now Note 6), which stated that the
enhancement applies “in addition to any criminal history points.” Finally, we have
noted that the § 2L1.2 enhancement supports a distinct policy concern from the
criminal history section; the criminal history section is designed to punish likely
recidivists more severely, while § 2L1.2 enhancement is designed to deter aliens
who have been convicted of a felony from re-entering the United States. Id.
As to the substantive reasonableness of the sentence, Mendoza-Bustos has
twice been convicted for possession of dangerous drugs. In 1998, he was arrested
for the possession for sale of cocaine, heroin, and methamphetamine. In 2003,
Mendoza-Bustos was arrested for possession with intent to distribute heroin. He
was deported after both convictions but illegally re-entered the country on at least
two occasions, including on at least one occasion when he was still on supervised
release. The district court heard testimony from Mendoza-Bustos, explicitly noted
the advisory guideline range of 46 to 57 months, and sentenced him at the low end
of the guideline range. The district court’s sentence was justified by Mendoza-
Bustos’s criminal history, the need to promote respect for the law, the need to
protect the public, and the need to deter Mendoza-Bustos and others from illegally
re-entering the United States. Additionally, the fact that Mendoza-Bustos’s 48-
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month sentence is only one-fifth of the 20-year statutory maximum sentence
further supports the reasonableness of his sentence. See Gonzalez, 550 F.3d at
1324. Accordingly, we affirm.
AFFIRMED.
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