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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15896
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00178-SCJ-JFK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONEL MONTOYA-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(July 1, 2013)
Before TJOFLAT, HULL and JORDAN, Circuit Judges.
PER CURIAM:
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On April 26, 2011, Leonel Montoya-Garcia (“Montoya”), a citizen of
Mexico, was deported after serving a prison sentence for violating the Street Gang
Terrorism and Prevention Act, O.C.G.A. 16-15-1. He subsequently reentered the
United States, and on October 6, 2011, was arrested for a state offense. This led to
his indictment in this case, illegal reentry of a previously deported alien, in
violation of 8 U.S.C. §§ 1326(a). He pled guilty to the offense, and the District
Court sentenced him to a prison term of 46 months.
He now appeals his sentence, arguing that it is substantively unreasonable in
light of the purposes of sentencing expressed in 18 U.S.C., § 3553(a). Two of the
reasons why it is unreasonable, according to Montoya, is that the court, in applying
U.S.S.G. § 2L1.2, engaged in a “multiple counting scheme, whereby his criminal
history was counted twice in the sentence range calculation under the Guidelines;,
aside from that, the court imposed a disparate sentence—different from those
imposed in “fast track” district courts. After careful review, we affirm Montoya’s
sentence.
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). A sentence should be “sufficient, but not
greater than necessary to comply with § 3553(a)’s purposes” of sentencing,
including the need to reflect the seriousness of the offense, promote respect for the
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law, provide just punishment, deter criminal conduct, and protect the public from
the defendant’s future crimes. See 18 U.S.C. § 3553(a)(2). In imposing a
sentence, the court must also consider the nature and circumstances of the offense,
the history and characteristics of the defendant, the applicable guideline range, and
the need to avoid unwarranted sentencing disparities. Id. § 3553(a)(1),(3)-(4), (6).
The weight to be accorded to any given § 3553(a) sentencing purpose is a
matter left to the court’s discretion; thus, we will not substitute our judgment in
weighing the relevant § 3553(a) purposes. United States v. Langston, 590 F.3d
1226, 1237 (11th Cir. 2009). Although we do not automatically presume that a
sentence falling within the Guidelines sentence range is reasonable, we ordinarily
expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746
(11th Cir. 2008). And a sentence well below the statutory maximum is another
indicator of reasonableness. See United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008) (considering the defendant’s sentence was well below the
statutory maximum as one factor indicating reasonableness).
A defendant’s prior felonies may be counted under both the criminal history
score and U.S.S.G. § 2L1.2. United States v. Adeleke, 968 F.2d 1159, 1161 (11th
Cir. 1992). A court is not required to depart based on the availability of a “fast
track” departure in other districts, and may not consider sentencing disparities
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associated with early disposition programs in imposing sentence. United States v.
Llanos-Agostadero, 486 F.3d 1194, 1198-99 (11th Cir. 2007).
We find that the District Court imposed a sentence that was supported by the
record and met the purposes encompassed within § 3553(a). The court’s finding
that Montoya posed a risk to the public of committing further crimes was
supported by evidence: (1) Montoya had previously been involved in a street gang
and had assaulted victims with a baseball bat; (2) he returned to the United States
within months of being deported; (3) he was arrested for the offense of “serious
injury by vehicle” after his illegal return; (4) he twice pled guilty to driving
without a license; and (5) he had been arrested for possession of a firearm or knife
during the commission of a felony, and theft by receiving stolen property. Thus,
after considering Montoya’s history and personal characteristics, including his
family and his criminal record, the court properly determined that Montoya’s
sentence needed to reflect the seriousness of the offense, promote respect for the
law, provide just punishment, afford adequate deterrence, and protect the public
from further crimes. 18 U.S.C. § 3553(a)(1), (2)(A)-(C).
The prison term Montoya received fell well below the 20-year statutory
maximum sentence applicable to his offense, further indicating that his sentence is
reasonable. See 8 U.S.C. § 1326(b)(2); see also Gonzalez, 550 F.3d at 1324; Hunt,
526 F.3d at 746. To the extent that he argues that his prior felony conviction was
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“double counted” in both his criminal history score and his offense level, his
argument is foreclosed by our precedent. See Adeleke, 968 F.2d at 1161 (rejecting
defendant’s argument that counting a prior felony conviction under both his
criminal history and § 2L1.2 constituted impermissible “double counting”). And,
although he contends that the court should have focused on his background without
regard to his applicable sentence range, the weight to be accorded to any given
§ 3553(a) factor is a matter left to the district court’s discretion, and we will not
substitute our judgment in weighing the relevant factors. See Langston, 590 F.3d
at 1237. In any event, the district court was required to consider his guideline
range when imposing his sentence. 18 U.S.C. § 3553(a)(3)-(4). Finally, his
sentence did not create an unwarranted sentencing disparity. We have never held
that U.S.S.G. § 2L1.2 lacks an empirical basis, and the district court was not
required to depart based on the existence of “fast track” departures in other
districts. See Llanos-Agostadero, 486 F.3d at 1198-99.
For the foregoing reasons, we find no basis for disturbing Montoya’s
sentence. His sentence is accordingly
AFFIRMED.
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