United States v. Miguel Herrera-Guillen

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 26, 2007
No. 06-12443 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00107-CR-FTM-33-DNF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL HERRERA-GUILLEN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(January 26, 2007)

Before ANDERSON, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
 Miguel Herrera-Guillen appeals his 48-month sentence for being an

aggravated felon who illegally reentered the United States post-deportation, 8

U.S.C. § 1326(a), 1326(b)(2). Herrera-Guillen argues that the district court erred

in sentencing him to 48 months’ imprisonment because the court never considered

a sentence outside the 41 to 51 months’ guidelines range and, therefore, effectively

transformed the guidelines from advisory into mandatory. Herrera-Guillen also

argues that the district court did not genuinely consider the case’s mitigating

factors. As a result, Herrera-Guillen claims his sentence is unreasonable and seeks

to have his sentence vacated and the case remanded for resentencing.

Where a defendant challenges his overall sentence, we review for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).

“After Booker, a sentence may be reviewed for procedural or substantive

unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.

2006). A sentence may be procedurally unreasonable if “it is the product of a

procedure that does not follow Booker’s requirements, regardless of the actual

sentence,” as when the district judge fails to consider the relevant factors in 18

U.S.C. § 3553(a) or when the district judge considers impermissible factors. Id.;

United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006), pet. for cert.

filed, (Oct. 19, 2006) (No. 06-7352) (disagreement with Congress’s policy

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judgments are invalid grounds for a lower sentence).

A sentence also “may be substantively unreasonable, regardless of the

procedure used.” Hunt, 459 F.3d at 1182 n.3. In assessing reasonableness, we

consider “the final sentence, in its entirety, in light of the § 3553(a) factors.”

United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006). Reasonableness

review of the length of a sentence is “deferential” and “[t]he party who challenges

the sentence bears the burden of establishing that the sentence is unreasonable in

light of both [the] record and the factors in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although a sentence within the

guidelines is not per se reasonable, “when the district court imposes a sentence

within the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” Id. at 787, 788.

Upon review of the record and sentencing transcripts, and upon

consideration of the briefs of the parties, we discern no reversible error. The

sentence was procedurally reasonable because the district court considered both the

guidelines and the § 3553(a) factors, noting that the guidelines range is just one of

the factors to be considered in sentencing. The sentencing judge considered

Herrera-Guillen’s arguments for mitigation and acknowledged that Herrera-

Guillen’s sentence was three months lower than it would have been had those

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arguments not been made, stating:

I understand your lawyer’s arguments and I have factored those in,
and quite frankly, that’s why I did not sentence you to the highest end
of the range, which is what I would have done, given the very violent
and vile nature of that crime. I mean, I can’t think of too many worse
things in life than to be raped while your children are on the other side
and your children being threatened if you don’t give into somebody’s
demands. I just can’t even imagine a worse factual scenario than that.
And that’s what I can’t, quite frankly, get around.

Although Herrera-Guillen argues that the district court “never considered a

sentence outside of the guideline range” and suggests that the court did not truly

consider the § 3553(a) factors, not once during his sentencing hearing did Herrera-

Guillen request a sentence any lower than “the low end of the guideline range.”

Even if Herrera-Guillen had made a request for such a departure, the district court

was entitled to sentence within the guidelines range without specifically

acknowledging each of the § 3553(a) factors. See, e.g., United States v. Scott, 426

F.3d 1324, 1329 (11th Cir. 2005). Here the district court specifically did note that

Herrera-Guillen’s arguments for mitigation had been factored into the sentencing

equation, showing that the sentencing judge definitely considered the § 3553(a)

factors.

The sentence was also substantively reasonable. Herrera-Guillen notes that

under Booker, a sentence within the guidelines range is not per se reasonable.

Talley, 431 F.3d at 786. Here, the sentencing judge did not blindly apply the

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guidelines range. The sentencing judge took account of the mitigating factors

offered by Herrera-Guillen and reduced the sentence below what he would have

imposed absent consideration of the § 3553(a) factors. “The weight to be accorded

any given § 3553(a) factor is a matter committed to the sound discretion of the

district court.” Williams, 456 F.3d at 1363. Moreover, “when the district court

imposes a sentence within the advisory Guidelines range, we ordinarily will expect

that choice to be a reasonable one.” Talley, 431 F.3d at 787, 788. Because the

sentencing judge in this case accorded some weight to the § 3553(a) factors,

sentenced Herrera-Guillen within the guidelines range, and provided valid reasons

for imposing a sentence near the top of the guidelines range, we are not “left with

the definite and firm conviction that the district court committed a clear error of

judgment.” Williams, 456 F.3d at 1363. Herrera-Guillen therefore has not shown

that “the sentence is unreasonable in light of both [the] record and the factors in

section 3553(a).” Id. at 788. Accordingly, we affirm his sentence.

AFFIRMED.

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