                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 10-11834                ELEVENTH CIRCUIT
                          Non-Argument Calendar            NOVEMBER 1, 2010
                        ________________________               JOHN LEY
                                                                CLERK
                 D.C. Docket No. 1:09-cr-00507-TCB-JFK-1

UNITES STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

JACINTO GONZALEZ-CRUZ,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                             (November 1, 2010)



Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     After pleading guilty, Jacinto Gonzalez-Cruz appeals his 60-month sentence
for illegal reentry after deportation, in violation of 8 U.S.C. §§ 1326(a) & (b)(2).

On appeal, Gonzalez-Cruz argues that his 60-month sentence was substantively

unreasonable. After review, we affirm.

                                 I. BACKGROUND

A.    Second Illegal Reentry Conviction

      In 2001, Gonzalez-Cruz, a Mexican citizen, was convicted in a Texas state

court of burglary of a habitation, an aggravated felony. After serving his sentence,

Gonzalez-Cruz was deported to Mexico in January 2002.

      In 2005, Gonzalez-Cruz was found in the United States. In 2006, Gonzalez-

Cruz pled guilty in federal court to illegal reentry of a deported alien and received

a 37-month sentence, followed by 36 months’ supervised release. On December

12, 2007, Gonzalez-Cruz was again deported.

      On October 11, 2009, Gonzalez-Cruz was arrested in Georgia after failing

to appear on outstanding traffic charges. Gonzalez-Cruz later admitted to

Immigration and Customs Enforcement agents that he had illegally reentered the

United States in September 2009. Gonzalez-Cruz pled guilty a second time to

illegal reentry after deportation.

B.    Sentencing

      At sentencing, the district court, without objection: (1) adopted the findings

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of fact in the presentence investigation report; (2) calculated a base offense level

of 8, pursuant to U.S.S.G. § 2L1.2; (3) applied a 16-level increase, pursuant to

§ 2L1.2(b)(1)(A), because Gonzalez-Cruz previously had been deported after a

felony conviction that was a crime of violence; (4) applied a 3-level decrease,

pursuant to § 3E1.1, for acceptance of responsibility; and (5) assigned a criminal

history category of V based on Gonzalez-Cruz’s prior convictions, which included

two 2005 DUIs in Georgia. With a criminal history category of V and an adjusted

offense level of 21, Gonzalez-Cruz’s advisory guidelines range was 70 to 87

months’ imprisonment.

      Gonzalez-Cruz asked for a thirty-month sentence. Gonzalez-Cruz stressed

that: (1) the 16-level offense level increase under the guidelines for his felony

burglary conviction, while technically correct, overstated the seriousness of that

offense because the subdivision he burglarized was under construction and

unoccupied; (2) his 2006 illegal reentry conviction resulted in six criminal history

points (three for the conviction, two for being on supervised release when the

instant offense was committed and one for committing the instant offense within

two years of being released from custody); (3) his father brought him to live in the

United States when he was six years old, after his older brother was murdered at

school; (4) he currently lives in Mexico with his girlfriend and their child and

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returned to the United States only to visit his sick mother; and (5) his last criminal

conduct occurred five years ago. The government argued that the district court

needed to consider deterrence in light of Gonzalez-Cruz’s prior convictions and

his disregard for the law in illegally reentering the United States.

       After listening to the parties’ arguments and Gonzalez-Cruz’s statement, the

district court imposed a 60-month sentence. In explaining the chosen sentence,

the district court stated:

              I have carefully considered all of the sentencing factors set forth
       in 18 [ ]U.S.C.[ ] Section 3553(a). It is particularly significant to the
       Court that this is a multiple re-entry case. I do recognize that, as [the
       government] acknowledged, the defendant had some subjectively valid
       reasons for returning to the United States, but of course those reasons do
       not trump the law.
              It is also disturbing to the Court that he had criminal convictions,
       the DUIs, while he was here illegally. . . . [I]f you’re going to come over
       here illegally, the least you can do once you get here, [is to] not break
       the law. I think [the government’s] right when [it] talks about . . . an
       apparent lack of respect for the law.
              On the other hand, as I’ve indicated, I think his being hit with a
       16-point enhancement for that specific characteristic, offense
       characteristic, is a bit harsh. And having weighed all of these equities
       and considered all of the facts of the case, I’m going to sentence the
       defendant to what I think is enough time, I think what is the minimum
       amount of time necessary to effectuate the statutory objectives, and
       that’s 60 months.

Gonzalez-Cruz filed this appeal.

                                  II. DISCUSSION



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       On appeal, Gonzalez-Cruz argues that his 60-month sentence is

substantively unreasonable. We review the substantive reasonableness of a

sentence under the abuse-of-discretion standard. Gall v. United States, 552 U.S.

38, 51, 128 S. Ct. 586, 597 (2007).1 The party challenging the sentence bears the

burden of establishing that the sentence is unreasonable in light of both the record

and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005).2 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 conclude Gonzalez-Cruz’s 60-month sentence, ten months below

the low end of the advisory guidelines range of 70 to 87 months, is reasonable. As

the district court noted, Gonzalez-Cruz has illegally reentered the United States

multiple times, the last time after Gonzalez-Cruz had already served a 37-month

sentence for the same offense. Furthermore, Gonzalez-Cruz committed other

criminal offenses, including two DUIs and an aggravated burglary, while in the

       1
        Gonzalez-Cruz does not challenge the district court’s guidelines calculations or in any
other way argue that his sentence is procedurally unreasonable.
       2
         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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United States. Considering the totality of the circumstances, we reject Gonzalez-

Cruz’s argument that the 60-month sentence overstates the seriousness of his

illegal reentry offense.

      Gonzalez-Cruz reasserts his argument that the 16-level increase in his

offense level under the guidelines overstated the seriousness of his burglary

offense and that his criminal history category overstated the seriousness of his

criminal history. The district court considered these mitigation arguments and,

in fact, gave Gonzalez-Cruz a ten-month downward variance based at least in part

on them. However, the district court was unwilling to vary any further downward

given the need for deterrence and to promote respect for the law. The district

court’s refusal to vary further downward was not an abuse of discretion.

      AFFIRMED.




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