             Case: 16-14890   Date Filed: 05/18/2017   Page: 1 of 8


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-14890
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 8:16-cr-00073-JDW-JSS-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

JUAN BARAJAS-PALOMAR,
a.k.a. Manuel Martinez-Sanchez,
a.k.a. Juan Barajas,

                                                           Defendant-Appellant.


                         ________________________

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

                                  (May 18, 2017)

Before JORDAN, ROSENBAUM and FAY, Circuit Judges.

PER CURIAM:
               Case: 16-14890     Date Filed: 05/18/2017     Page: 2 of 8


      Juan Barajas-Palomar appeals his 36-month sentence following his guilty

plea to one count of illegal reentry after deportation for a felony. We affirm.

                                 I. BACKGROUND

      Barajas-Palomar, a native and citizen of Mexico, first illegally entered the

United States in 1968. Between 1982 and 1987, he was convicted of traffic

violations, petit theft, burglary of a structure, driving under the influence, resisting

arrest without violence, and possession of drug paraphernalia. In April 1988, he

was convicted of possession of cocaine and possession of marijuana. In 1992, an

immigration judge ordered Barajas-Palomar to be removed; he was deported to

Mexico the next day.

      Barajas-Palomar illegally returned to the United States and, between April

2007 and July 2011, was arrested for multiple driving crimes. From 2011 to 2013,

Barajas-Palomar illegally reentered the United States and was removed from the

country at least five more times. In 2011 and 2013, Barajas-Palomar twice was

convicted of illegal entry into the United States and served a six-month sentence

for each conviction.

      In January 2016, Barajas-Palomar was arrested on out-of-country warrants.

During an interview, he admitted to Immigration and Customs Enforcement agents

he illegally had reentered the United States in 2013. Barajas-Palomar was indicted

for reentering the United States without permission after previously having been


                                            2
              Case: 16-14890     Date Filed: 05/18/2017   Page: 3 of 8


convicted of possessing cocaine, in violation of 8 U.S.C. § 1326(a) and (b)(1)

(Count One), and improper entry into the United States, in violation of 8 U.S.C. §

1325(a)(1) (Count Two). Barajas-Palomar pled guilty to the indictment without a

plea agreement. The district judge subsequently granted the government’s motion

to dismiss Count Two, because of an error in the notice of maximum penalties.

      In the Presentence Investigation Report (“PSI”), the probation officer

calculated a base-offense level of 8 for a crime involving unlawfully entering or

remaining in the United States, pursuant to U.S.S.G. § 2L1.2. Barajas-Palomar

received a four-level enhancement under U.S.S.G. § 2L1.2(b)(1)(D), because he

previously had been deported for a felony conviction of cocaine possession. He

also received a two-level reduction for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1(a). His total-adjusted-offense level was 10.

      Based on Barajas-Palomar’s prior criminal convictions qualifying for a total

of four criminal-history points, the probation officer assigned him a criminal-

history category of III. Barajas-Palomar received two criminal-history points for

an August 2011 conviction for illegal entry and two additional criminal-history

points for an April 2013 conviction for illegal entry. Although not qualifying for

criminal-history points, the PSI noted Barajas-Palomar’s other prior convictions




                                          3
                Case: 16-14890       Date Filed: 05/18/2017       Page: 4 of 8


and numerous arrests. 1 Based on his criminal-history category of III and the total-

adjusted-offense level of 10, Barajas-Palomar’s resulting Sentencing Guidelines

range was 10 to 16 months of imprisonment, with a maximum of 120 months of

imprisonment. 8 U.S.C. § 1326(a), (b)(1).

       In considering the 18 U.S.C. § 3553(a) factors, the district judge noted

Barajas-Palomar had numerous prior convictions that did not qualify for criminal-

history points, multiple prior deportations, and a “shocking” history of recidivism.

Sentencing Hr’g Tr. at 9 (June 27, 2016). The judge stated Barajas-Palomar

demonstrated a lack of respect for the United States and Florida law and the prior

terms of imprisonment Barajas-Palomar had served had no deterrent effect. The

judge concluded the Guidelines range did not reflect adequately the sentencing

factors set forth in § 3553(a) and an upward variance was appropriate to reflect the

seriousness of the crime, promote respect for the law, and act as a deterrent.

       In considering the extent of the upward variance, the judge stated a lengthy

sentence was necessary to protect the public. The judge noted Barajas-Palomar


1
 Barajas-Palomar was convicted of (1) petit theft in March 1982; (2) burglary of a structure in
September 1982; (3) driving without a valid driver’s license in February 1985, March 1985,
September 2009, and January 2016; (4) driving under the influence, resisting arrest without
violence, driving with a suspended license, and fleeing or attempting to elude law enforcement in
September 1987; (5) possession of drug paraphernalia in January 1988; and (7) possession of
cocaine and possession of marijuana in April 1988. Additionally, he was arrested for four counts
of burglary, three counts of grand theft, larceny, dealing in stolen property, kidnapping, two
counts of sexual battery, carrying a concealed firearm, two counts of possession of marijuana,
possession of drug paraphernalia, resisting an officer without violence, false claims of United
States citizenship, and two counts of driving without a valid driver’s license.
                                               4
                Case: 16-14890   Date Filed: 05/18/2017   Page: 5 of 8


created a public-safety concern, because he had committed several felonies, was

involved with drugs, regularly drove without a license, and repeatedly had entered

the United States illegally. The judge also noted Barajas-Palomar had 14

additional arrests that did not result in conviction, including kidnapping and sexual

battery but stated those were not going to be considered in determining the

appropriate sentence. After hearing arguments, the judge sentenced Barajas-

Palomar to 36 months of imprisonment and 3 years of supervised release. The

judge stated:

            I have . . . varied upward from the advisory guideline range for
      the reasons I’ve articulated, my concerns about his criminal history,
      his repeated conduct, and illegally re-entering this country six times
      since 1992. History and characteristics of the defendant, his lack of
      respect for the law, the fact that two prior six-month sentences in
      federal court have not deterred him. I’m not sure 36 months will deter
      him either, but that seems to be the appropriate sentence.

Id. at 15. The judge subsequently overruled Barajas-Palomar’s objection to the

substantive reasonableness of his sentence.

      On appeal, Barajas-Palomar argues his sentence was substantively

unreasonable, because a sentence within the Sentencing Guidelines range was all

that was necessary to reflect the seriousness of his crime, provide individual and

general deterrence, protect the community, and rehabilitate him. He asserts this

court should be left with the “definite and firm conviction” the district judge had

“tipped the scales too far in favor of punishment.” Appellant’s Br. at 23-24 n.14.


                                          5
              Case: 16-14890     Date Filed: 05/18/2017    Page: 6 of 8


He argues his 36-month sentence, a 260% upward variance, should be vacated and

remanded for resentencing.

                                 II. DISCUSSION

      We review the reasonableness of a district judge’s final sentence under the

deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41,

128 S. Ct. 586, 591 (2007). The judge must impose a sentence “sufficient, but not

greater than necessary to comply with the purposes” listed in 18 U.S.C. §

3553(a)(2), including the need to reflect the seriousness of the crime, promote

respect for the law, provide just punishment for the crime, deter criminal conduct,

and protect the public from the defendant’s future criminal conduct. 18 U.S.C.

§ 3553(a). In imposing a particular sentence, the judge must also consider the

nature and circumstances of the crime, the history and characteristics of the

defendant, the kinds of sentences available, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.

§ 3553(a)(1), (3)-(7).

      In reviewing the reasonableness of a sentence, we follow a two-step process.

First, we ensure the sentence was procedurally reasonable. Gall, 552 U.S. at 51,

128 S. Ct. at 597. Second, we determine whether the sentence was substantively

reasonable in light of the totality of the circumstances. Id. A sentence is

substantively reasonable if, under a totality of the circumstances, it achieves the


                                          6
              Case: 16-14890     Date Filed: 05/18/2017    Page: 7 of 8


purposes of § 3553(a). United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.

2008). The party challenging the sentence bears the burden of showing it is

unreasonable in view of the record and the § 3553(a) factors. United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We reverse only “if we are left with

the definite and firm conviction that the district [judge] 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.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (citation and internal

quotation marks omitted). A sentence well below the statutory maximum is

indicative of reasonableness. United States v. Dougherty, 754 F.3d 1353, 1362,

1364 (11th Cir. 2014).

      If the district judge concludes a variance from the Guidelines range is

appropriate, he must consider the extent of the variance and ensure the justification

for that variance is sufficiently compelling. United States v. Overstreet, 713 F.3d

627, 636 (11th Cir. 2013). Extraordinary circumstances are not required for a

sentence outside the Guidelines range to be justified; we may not presume a

sentence outside the Guidelines range is unreasonable. United States v. Rosales-

Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). The percentage of a variance does

not determine the strength of the justification required for a specific sentence. See

Gall, 552 U.S. at 47-48, 128 S. Ct. at 595 (stating “quantifying the variance as a


                                          7
              Case: 16-14890     Date Filed: 05/18/2017    Page: 8 of 8


certain percentage . . . gives no weight to the substantial restriction of freedom

involved in a term of supervised release or probation” (citation and internal

quotation marks omitted)).

      The district judge imposed Barajas-Palomar’s sentence to meet the goals

under § 3553(a). The judge found Barajas-Palomar’s criminal history, repeated

crimes, and six illegal reentries since 1992 showed a need to impose a higher

sentence to act as a deterrent, promote respect for the law, and protect public

safety. Pugh, 515 F.3d at 1191. Another indicator the 36-month sentence was

substantively reasonable is it was well below the 120-month statutory maximum.

Dougherty, 754 F.3d at 1362, 1364. The judge’s disagreement with Barajas-

Palomar on the weight of the factors or the inability of a sentence within the

Guidelines to act as a deterrent does not constitute an abuse of discretion. Irey,

612 F.3d at 1190. The judge did not abuse his discretion, because he considered

the § 3553(a) factors and the purposes of the Sentencing Guidelines and properly

concluded Barajas-Palomar’s criminal history and high recidivism rate warranted a

20-month upward variance. Based on the record and the § 3553(a) factors,

Barajas-Palomar fails to demonstrate his sentence was substantively unreasonable.

Tome, 611 F.3d at 1378.

      AFFIRMED.




                                           8
