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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15332
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00119-JES-DNF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIX ALBERTO BERNAL,
a.k.a. Chiparro,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 10, 2013)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
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Felix Alberto Bernal appeals his 135-month total sentence, imposed after
pleading guilty to conspiracy to possess with intent to distribute, and to distribute,
methamphetamine (Count 1) and possessing with intent to distribute, and
distributing methamphetamine (Count 2). On appeal, Bernal argues that: (1) his
sentence was unreasonable because the district court failed to consider any 18
U.S.C. § 3553(a) factor except the advisory guideline range; and (2) the court
improperly considered Bernal’s lack of candor during his safety-valve debriefing
and before the court, thus unfairly punishing him for unsuccessfully seeking
safety-valve relief. After thorough review, we affirm.
We review the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,
351 (2007)). However, we review de novo whether a district court considered an
impermissible factor. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
In reviewing sentences for reasonableness, we perform two steps. Pugh, 515
F.3d at 1190. First, we “‘ensure that the district court committed no significant
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
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deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 552 U.S.
38, 51 (2007)).1 A district court may consider “any information concerning the
background, character and conduct of the defendant, unless otherwise prohibited
by law.” U.S.S.G. § 1B1.4; see 18 U.S.C. § 3661 (providing that a sentencing
court may consider the defendant’s background, character, and conduct).
If we conclude that the district court did not procedurally err, we consider
the “‘substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 515
F.3d at 1190 (quoting Gall, 552 U.S. at 51). Applying “deferential” review, we
must determine “whether the sentence imposed by the district court fails to achieve
the purposes of sentencing as stated in section 3553(a).” United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). “[W]e will not second guess the weight (or
lack thereof) that the [court] accorded to a given 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, alteration
and emphasis omitted), cert. denied, 131 S.Ct. 2962 (2011). We will “vacate the
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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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sentence if, but only if, 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) (quotation omitted), cert. denied, 131 S. Ct. 1813 (2011).
The party challenging the sentence bears the burden to show it is
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert.
denied, 131 S.Ct. 674 (2010). While we do not automatically presume a sentence
falling within the guideline range to be reasonable, we ordinarily expect that
sentence to be reasonable. Talley, 431 F.3d at 788. A sentence imposed well
below the statutory maximum penalty is another indicator of reasonableness. See
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding that the
sentence was reasonable in part because it was well below the statutory maximum).
Though the court is required to consider all the factors contained within § 3553(a),
it need not necessarily reference or discuss each one. Talley, 431 F.3d at 786.
First, Bernal fails to show that his sentence was procedurally unreasonable.
The court addressed each of Bernal’s arguments regarding his sentencing and said
that it had considered the policy goals and factors encompassed within § 3553(a).
So although the court did not address each § 3553(a) factor, its acknowledgement
that it had, indeed, considered all of these factors was sufficient. See id. Further,
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Bernal’s lack of candor at his safety-valve debriefing and sentencing hearing was
evidence of his character and conduct and, thus, not an improper consideration for
sentencing purposes. See U.S.S.G. § 1B1.4. And in any event, his lack of candor
is properly considered as part of his history and characteristics. 18 U.S.C. §
3553(a)(1). As for Bernal’s claim that he was punished for attempting to comply
with the debriefing requirements in obtaining a safety-valve reduction, he claims
no error in the district court’s finding that he was not truthful.
Nor has Bernal demonstrated that his sentence was substantively
unreasonable. To the extent that Bernal is objecting to the court’s weighing of the
§ 3553(a) factors, his argument fails. First, the weight given to any specific §
3553(a) factor is committed to the sound discretion of the district court. Clay, 483
F.3d at 743. Moreover, Bernal’s lack of candor at his debriefing and before the
court was relevant to evaluating his “history and characteristics,” and we will not
second guess the district court’s judgment regarding the appropriate weight to give
a § 3553(a) factor. Snipes, 611 F.3d at 872; 18 U.S.C. § 3553(a)(1). Because
Bernal’s sentence was within the applicable guideline range, we would ordinarily
expect the sentence to be reasonable. Talley, 431 F.3d at 788. Finally, Bernal’s
135-month sentence (equivalent to 11.25 years) was substantially below the
statutory maximums for both Counts One and Two, life and 40 years respectively,
yet another indicator of reasonableness. See Gonzalez, 550 F.3d at 1324.
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AFFIRMED.
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