            Case: 17-15305   Date Filed: 08/03/2018   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15305
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:17-cr-00123-LSC-SGC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                   versus


MIGUEL GONZALEZ-FLORES,
a.k.a. Carlos Manuel Gonzalez,
a.k.a. Carlos Gonzalez,
a.k.a. Manuel C. Gonzalez,
a.k.a. Miguel Gonzalez,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 3, 2018)
              Case: 17-15305     Date Filed: 08/03/2018   Page: 2 of 6


Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM:

      Miguel Gonzalez-Flores appeals his 36-month sentence for unlawful reentry

after deportation or removal subsequent to a felony conviction. He argues that his

sentence is substantively unreasonable because, he says, the district court placed

significant weight on his criminal history while ignoring his mitigating

characteristics and failed to adequately justify its upward variance. Because we

conclude that Gonzalez-Flores’s sentence is reasonable, we affirm.

                                          I

      Gonzalez-Flores pleaded guilty to one count of illegally reentering the

United States after having been previously removed subsequent to a felony

conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). According to the

presentence investigation report, Gonzalez-Flores, a Mexican national, has lived in

the United States since age 11. During that time, he has been convicted of felony

possession of a controlled substance, along with 18 other crimes. Those crimes

include, among other things, resisting a public officer, driving under the influence

(four times), possessing a firearm with the identification altered, possessing drug

paraphernalia, possessing marijuana, and public intoxication. Also, at the time of

sentencing, one count of discharging a firearm into an occupied building was




                                          2
              Case: 17-15305     Date Filed: 08/03/2018    Page: 3 of 6


pending against him in state court. The PSI indicated that the sentencing guideline

range was one to seven months imprisonment.

      Neither party objected to the PSI at the sentencing hearing, and the district

court adopted its findings and conclusions. The court then addressed Gonzalez-

Flores’s “extensive criminal history”—referring to it as the “elephant in the room.”

The judge explained that Gonzalez-Flores’s pending charge for discharging a

firearm into an occupied building “got [his] attention,” and the court heard

evidence about the circumstances surrounding that charge. Counsel for Gonzalez-

Flores conceded that “there is evidence to find that [he] possessed a gun and shot it

into the air” outside a nightclub, and given that evidence, suggested that a sentence

between 12 and 18 months would be reasonable. Consistent with its obligation

under the plea agreement, the government requested “a low end range sentence or

time served.” The district court found that a within-guidelines sentence was not

appropriate under the circumstances and imposed a sentence of 36 months

imprisonment.

                                          II

      A district court must select a sentence that is “sufficient, but not greater than

necessary,” to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, deter criminal conduct, and protect the public. 18 U.S.C.

§ 3553(a)(2). In making its selection, the district court must also consider (1) the


                                          3
               Case: 17-15305    Date Filed: 08/03/2018    Page: 4 of 6


nature and circumstances of the offense and the characteristics of the defendant, (2)

the kinds of sentences available, (3) the sentencing guideline range, (4) the

pertinent policy statements of the Sentencing Commission, (5) the need to avoid

sentencing disparities among similarly-situated defendants, and (6) any need for

restitution to victims. Id.

      We review the reasonableness of a sentence for abuse of discretion. United

States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). We first determine if the

district court committed a significant procedural error such as miscalculating the

guideline range, treating the Sentencing Guidelines as mandatory, failing to

consider the relevant Section 3553(a) factors, selecting a sentence based on

erroneous facts, or failing to explain the sentence selected. Gall v. United States,

552 U.S. 38, 51 (2007). Assuming we find no procedural error, we then ask

whether the sentence is substantively reasonable in light of the totality of the

circumstances and the Section 3553(a) factors. Id. The party challenging the

sentence bears the burden of showing that the sentence is unreasonable. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We will vacate a sentence

as substantively unreasonable only if we are “left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the Section 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


                                           4
               Case: 17-15305     Date Filed: 08/03/2018    Page: 5 of 6


F.3d 1160, 1190 (11th Cir. 2010). The guidelines are only one factor for the

district court to consider, and we “may not presume that a sentence outside the

guidelines is unreasonable.” Id. at 1187.

      On appeal, Gonzalez-Flores argues only that his sentence is substantively

unreasonable. He asserts that the district court “focused unreasonably on one

factor, Mr. Gonzalez-Flores’s criminal history and pending charge, while ignoring

his mitigating characteristics.” Br. of Appellant at 7. But the weight to give to

each factor under Section 3553(a) is a matter committed to the sound discretion of

the district court, United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007), and

the court is permitted to “attach great weight to one factor over others,” United

States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015) (quotation omitted).

Here, as the district court explained, Gonzalez-Flores “already had entered the

United States illegally” multiple times, “had already committed all these other

offenses,” and then “on top of it, even if you take the best scenario,” he had shot a

firearm into the air outside a nightclub. It was reasonable for the district court to

conclude that an above-guidelines sentence was appropriate considering “the

nature and circumstances of the offense and the history and characteristics of this

particular defendant.”

      Nor did the district court “ignor[e]” Gonzalez-Flores’s mitigating

circumstances. The court solicited arguments from him in mitigation and heard his


                                            5
               Case: 17-15305     Date Filed: 08/03/2018   Page: 6 of 6


arguments regarding his time in the United States, his sense of home in the United

States, and his lack of access to rehabilitative treatment. Even after Gonzales-

Flores objected to the “degree of the upward variance” as “above and beyond

what’s required in this case,” the court again pointed to Gonzalez-Flores’s

significant criminal history and the pending charge related to his discharge of a

firearm. The court therefore did not ignore the mitigating circumstances, but

instead considered them and found them to be outweighed by his past conduct. See

United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (“It is sufficient that

the district court considers the defendant’s arguments at sentencing and states that

it has taken the § 3553(a) factors into account.”).

      We also reject Gonzalez-Flores’s argument that the district court “failed to

adequately justify the extent” of its upward variance. Br. of Appellant at 7. The

court made its rationale clear, referring to Gonzalez-Flores’s criminal history as

“extensive” and the “elephant in the room.” The court specifically referenced

Gonzalez-Flores’s repeated re-entries into the United States, his past felonies, and

his recent possession and discharge of a firearm at a nightclub. Given the

deference owed to the district court’s decision that the Section 3553(a) factors, on

balance, justify the extent of the variance, we conclude that the district court did

not abuse its discretion.

      AFFIRMED.


                                           6
