                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-14931         ELEVENTH CIRCUIT
                         Non-Argument Calendar        JUNE 13, 2011
                       ________________________        JOHN LEY
                                                        CLERK
                  D.C. Docket No. 2:10-cr-14048-JEM-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus

MIGUEL MEDRANO,

                                                         Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (June 13, 2011)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      After pleading guilty, Miguel Medrano appeals his 57-month sentence for

illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). On

appeal, Medrano argues that his 57-month sentence was substantively

unreasonable. After review, we affirm.

                               I. BACKGROUND

A.    Deportation and Illegal Reentry

      Medrano is a citizen and national of Mexico, but was raised in the United

States from the age of two. In 2004, Medrano was convicted in Southern District

of Florida of conspiracy to possess with intent to distribute more than fifty grams

of methamphetamine. The district court imposed a 37-month sentence, followed

by three years’ supervised release. One of Medrano’s special conditions of

supervised release required that, if Medrano was deported, he was not to reenter

the United States without permission from immigration authorities. After serving

his imprisonment term, Medrano was deported to Mexico in March 2007.

      Medrano lived in the border area of Mexico and received money from his

family as support. After several months, Medrano walked across the U.S. border

without receiving permission to enter the United States. Medrano lived with his

parents in Florida until late 2009, when he moved to Georgia.




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      The U.S. Probation Office learned that Medrano had applied for and was

issued a Florida driver’s license on April 28, 2008. On May 19, 2008, a warrant

was issued against Medrano for violating his supervised release.

      Two years later, Medrano was arrested in Georgia for driving under the

influence. Medrano was detained by the U.S. Marshals Service on the outstanding

warrant and removed to the Southern District of Florida. There, Medrano was

charged with the instant offense and pled guilty.

B.    Presentence Investigation Report

      Using the 2009 version of the Sentencing Guidelines, the Presentence

Investigation Report (“PSI”): (1) assigned Medrano a base offense level of 8,

pursuant to U.S.S.G. § 2L1.2(a); (2) applied a 16-level increase, pursuant to

§ 2L1.2(b)(1)(A)(i), because Medrano had been deported after being convicted of

a felony drug trafficking offense; (3) applied a 3-level decrease, pursuant to

§ 3E1.1, for Medrano’s acceptance of responsibility; (4) assigned 4 criminal

history points based on Medrano’s prior convictions for DUI and drug conspiracy;

(5) assigned 2 criminal history points, pursuant to § 4A1.1(d), because Medrano

committed the instant offense while on supervised release; and (6) assigned 1

criminal history point, pursuant to § 4A1.1(e), because Medrano committed the




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instant offense within two years after release from custody.1 With a criminal

history category of IV and an adjusted offense level of 21, the PSI recommended

an advisory guidelines range of 57 to 71 months’ imprisonment. Neither party

objected to the PSI.

C.     Sentencing

       At the October 12, 2010 sentencing hearing, Medrano requested a

downward variance from the advisory guidelines range based on: (1) the

upcoming guidelines amendment that would authorize a downward departure

based on the defendant’s cultural assimilation;2 and (2) the fact that Medrano’s

criminal history category increased because of “recency” points, and the recency

of his illegal reentry was related to his cultural assimilation. Medrano stressed

that he was raised and educated in the United States, his family lived in the United

States, and Mexico was not really his country.

       1
        After Medrano’s sentencing and effective November 1, 2010, the Sentencing
Commission eliminated the “recency” points provision in U.S.S.G. § 4A1.1(e). See U.S.S.G.
app. C, amend 742 (explaining that the amendment was based on recent research indicating that
“consideration of recency only minimally improves the predictive ability” of the criminal history
score and on public comment suggesting that recent recidivism “may reflect the challenges to
successful reentry after imprisonment rather than increased culpability”).
       2
         Effective November 1, 2010, the Sentencing Commission amended the commentary to
2L1.1 to address “when a downward departure may be appropriate in an illegal reentry case . . on
the basis of the defendant’s cultural assimilation to the United States.” U.S.S.G. app. C, amend.
740. The Sentencing Commission did not make Amendment 740 retroactive. See U.S.S.G.
§ 1B1.10(c) (listing retroactive guidelines amendments). However, the district court considered
Medrano’s cultural assimilation in any event.

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      The district court acknowledged that it could vary downward from the

advisory guidelines range based on Medrano’s cultural assimilation/recency points

argument, but declined to do so in Medrano’s case. Among other things, the

district court stressed that the goal was to assimilate people who had not violated

narcotics laws. The district court stated that it would be more sympathetic to

Medrano’s argument if Medrano’s prior offense was related to immigration as

opposed to trafficking in methamphetamine, which is a very serious crime for

which Medrano received a substantial sentence.

      Before imposing a sentence, the district court stated that it had considered

the parties’ arguments, the PSI, the advisory guidelines and the statutory factors.

The district court again acknowledged that it “could take into consideration the

upcoming amendments” and sentence Medrano “anywhere within the statutory

maximum.” The district court imposed a 57-month sentence, at the low end of the

advisory guidelines range. Medrano appealed.

                                 II. DISCUSSION

      On appeal, Medrano does not challenge the district court’s guidelines

calculations or otherwise argue that his sentence is procedurally unreasonable.

Rather, Medrano argues that his 57-month sentence is substantively unreasonable.

We review the substantive reasonableness of a sentence under the abuse-of-

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discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007). The party challenging the sentence bears the burden of establishing that

the sentence is unreasonable in light of both the record and the 18 U.S.C.

§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).3

We ordinarily expect a sentence within the advisory guidelines range will be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

       Here, we cannot say Medrano’s 57-month sentence, at the bottom of the

advisory guidelines range of 57 to 71 months, is substantively unreasonable. As

the district court pointed out, Medrano’s criminal history included a serious drug

trafficking conviction. The district court concluded that the seriousness of

Medrano’s prior felony drug conviction outweighed the fact that Medrano may

have returned to the United States so quickly after his deportation because of his

cultural assimilation.

       Medrano argues that he is the “living embodiment” of the new cultural

assimilation downward departure provision in U.S.S.G. § 2L1.2. That provision,

       3
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need 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
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).

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however, directs the sentencing court to consider not only the defendant’s ties to

the United States, but also the seriousness of the defendant’s criminal history. See

U.S.S.G. § 2L1.2 cmt. n.8. As the district court explained, a defendant’s plea for

mercy based on cultural assimilation is less compelling when he has already

committed a felony drug crime in the United States. Medrano has not shown that

the district court’s denial of his request to vary downward was an abuse of

discretion.

      AFFIRMED.




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