                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 08-16804
                                                           OCTOBER 30, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________                CLERK

                 D. C. Docket No. 08-00058-CR-RWS-1-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ROGACIANO PINEDA-PINEDA,
a.k.a. Yanez Salvador Pineda,
a.k.a. Pineda Sal Yanez,

                                                         Defendant-Appellant.


                       ________________________

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

                            (October 30, 2009)

Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:

      Defendant-Appellant Rogaciano Pineda-Pineda appeals his 77-month

sentence for being an alien found in the United States without permission after

having previously been convicted of an aggravated felony and removed from the

United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). No reversible error

has been shown; we affirm.

      Pineda-Pineda challenges the substantive reasonableness of the within-

guidelines sentence imposed. No error is claimed in the calculation of the 77 to

96-month guideline range.

      Appellate review of the substantive reasonableness of a sentence–whether

inside or outside the guidelines range–is normally under an abuse-of-discretion

standard. Gall v. United States, 128 S.Ct. 586, 597 (2007). We have not decided

whether plain error review applies when, as here, the defendant did not object to

the sentence in the district court. We need not decide which standard applies

because Pineda-Pineda’s sentence was reasonable and thus was proper under either

standard of review.

      Reasonableness review is deferential. A within-guidelines range sentence is

ordinarily expected to be reasonable, and the appellant bears the burden of

establishing the absence of reasonableness in the light of the record and the section



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3553(a) factors. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      Pineda-Pineda argues that his family history, lack of education, history of

drug and alcohol addiction, and the “bottom-rung-dealer nature” of his three prior

felony convictions for possession with intent to distribute all show that section

3553(a) would have been satisfied by a below-guideline sentence.

      The transcript of the sentencing hearing makes it clear that the district court

considered Pineda-Pineda’s arguments and the section 3553(a) factors; the district

court stated expressly that the arguments advanced by Pineda-Pineda warranted a

sentence at the low end of the guidelines, but no variance.

      Pineda-Pineda failed to carry his burden of establishing that his sentence was

substantively unreasonable. We cannot say the 77-month low-end guideline range

sentence was “outside the range of reasonable sentences dictated by the facts of the

case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (internal

quotation marks omitted).

AFFIRMED.




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