                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                 APRIL 4, 2012
                            No. 11-12810
                        Non-Argument Calendar                     JOHN LEY
                                                                   CLERK
                      ________________________

               D.C. Docket No. 1:11-cr-00036-WSD-JFK-1



UNITED STATES OF AMERICA,

                              llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                  versus

DANILO JOSE GUTIERREZ,

                            llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                     ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (April 4, 2012)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Danilo Jose Gutierrez appeals his 27-month sentence of imprisonment, after

pleading guilty to one count of illegal reentry of a deported alien, in violation of

8 U.S.C. § 1326(a), (b)(2). Gutierrez argues that his sentence is substantively

unreasonable in light of the relevant factors under 18 U.S.C. § 3553(a), because

the eight-level aggravated felony enhancement, imposed pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C), resulted in an unreasonable guideline range not entitled to

deference, the enhancement double-counted his prior misdemeanor battery

conviction, and the district court failed to properly consider the nature of his

offense and his personal characteristics in determining sentence.

      We engage in a two-step process in reviewing sentences of imprisonment.

United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). First, we look

for any significant procedural errors. Id. Second, we review the substantive

reasonableness of a sentence under “a deferential abuse-of-discretion standard”

regardless of whether the sentence is “inside, just outside, or significantly outside

the Guidelines range.” Id. at 1090-91. In this second step, we take into account

the “totality of the circumstances” and “give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”

Id. at 1091. Although we do not apply a presumption of reasonableness,

“ordinarily we would expect a sentence within the Guidelines range to be

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reasonable.” United States v. Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009),

cert. denied, 131 S.Ct. 436 ( 2010).

      A district court abuses its discretion when it (1) fails to consider relevant

factors that were due significant weight, (2) gives significant weight to an

improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the factors. United States v. Irey, 612 F.3d 1160, 1189

(11th Cir. 2010), cert. denied, 131 S.Ct. 1813 (2011). We will “vacate the

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.” Id. at 1190. The burden rests on the party

challenging the sentence to show that the sentence is unreasonable in light of the

record and the § 3553(a) factors. United States v. Bohannon, 476 F.3d 1246, 1253

(11th Cir. 2007).

      We have previously considered the “double counting” argument and upheld

the § 2L1.2 enhancement, because the Guidelines application notes show that the

Commission intended certain prior offenses to apply to both the offense level and

the criminal history category, and because the enhancement supports a distinct

policy concern. United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992).

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With respect to Gutierrez’s other argument that the § 2L1.2 aggravated felony

enhancement was not entitled to deference, based on Kimbrough v. United States,

552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Supreme Court, in that

case, merely held that a sentence is not per se unreasonable when based on the

sentencing court’s disagreement with the sentencing disparity for crack and

powder cocaine offenses. See 552 U.S. at 91, 128 S.Ct. at 564.

      Gutierrez’s sentence is not substantively unreasonable, because the district

court did not abuse its discretion in giving greater emphasis to particular § 3553

factors, based on the facts and circumstances of the case. United States v.

Langston, 590 F.3d 1226, 1237 (11th Cir. 2009) (declining to reweigh the § 3553

factors absent showing of clear error of judgment by the district court). The record

shows that the district court specifically considered Gutierrez’s background in

Nicaragua, his alcohol addiction, and his economic circumstances, and balanced

these factors against the need to impose an appropriate punishment for Gutierrez’s

offense, to deter Gutierrez from illegally entering the United States again, and to

promote respect for the law. The sentence imposed is also consistent with the

variance Gutierrez requested at sentencing, because it falls within the proposed

24-30 month range. Furthermore, Gutierrez received a sentence below both the

minimum guideline and the 10-year sentencing maximum. Thus, Gutierrez failed

                                          4
to demonstrate that the district court committed a clear error of judgment in its

assignment of weight to the proposed mitigating factors or that the resulting

sentence fell outside the reasonable range of sentences.

      AFFIRMED.




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