                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 08-13322                    MARCH 6, 2009
                          Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                        ________________________

                    D. C. Docket No. 07-10053-CR-KMM

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                   versus

DUNIESKIS RODRIGUEZ PINERO,
a.k.a. Pineriro Domieque-Rodriguez,

                                                         Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (March 6, 2009)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
       Dunieskis Rodriguez Pinero appeals his sentence after pleading guilty to

conspiracy to smuggle aliens into the United States, in violation of

8 U.S.C. § 1324(a)(1)(A)(iv).1 On appeal, Pinero argues that his 120-month

sentence is procedurally and substantively unreasonable because it exceeds the

guideline range, which accounted for his conduct, the death of one of the aliens,

and his criminal history, by 42 months.

                                                I.

       We review a final sentence under the guidelines for reasonableness. United

States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). In conducting this review,

we apply a deferential abuse of discretion standard. Gall v. United States,

552 U.S. __, __, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). A defendant

challenging his sentence bears the burden of establishing that it is unreasonable.

Talley, 431 F.3d at 788.

       We first review whether the district court committed a procedural error,

such as incorrectly calculating the Guidelines, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, imposing a sentence based on



       1
          On appeal, Pinero does not challenge: (1) his convictions; (2) his 60-month sentence for
failure to obey a United States Coast Guard (“USCG”) order to heave to, in violation of
18 U.S.C. § 2237(a)(1), (2) (Count 14); or (3) the district court’s calculation of the Guidelines.
Therefore, he abandoned any arguments with respect to those issues. United States v. Blasco,
702 F.2d 1315, 1332 n.28 (11th Cir. 1983).

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clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall,

552 U.S. at ___, 128 S.Ct. at 597. Procedurally, a district court is not required to

give notice that it intends to impose an above guideline range sentence. Irizarry

v. Unites States, ___ U.S. ____, ____, 128 S.Ct. 2198, 2202-03, 171 L.Ed.2d 28

(2008). Further, a court may consider conduct that supported enhancement of a

defendant’s guideline offense level to vary upward from the recommended

guideline range. United States v. Amedeo, 487 F.3d 823, 833-34 (11th Cir.),

cert. denied, 128 S.Ct. 671 (2007).

      If there are no procedural errors in the sentence, we “then consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Gall, 552 U.S. at ___, 128 S.Ct. at 597. The review involves inquiring

into whether the § 3353(a) factors support the sentence. Id. at ___, 128 S.Ct. at

600. The factors presented in § 3553(a) 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 Guideline 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.




                                          3
Talley, 431 F3d at 786; see 18 U.S.C. § 3553(a). After considering these factors,

the court “must make an individualized assessment based on the facts presented.”

Gall, 552 U.S. at __, 128 S.Ct. at 597. However, the sentencing court is not

required to discuss each individual factor when determining a sentence. United

States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005).

      We have acknowledged that the Supreme Court in Rita v. United States,

551 U.S. __, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), has upheld other circuits’

decisions recognizing a presumption of reasonableness for within-range sentences,

but we do not “presume reasonable a sentence within the properly calculated

Guideline range.” United States v. Campbell, 491 F.3d 1306, 1313-14

(11th Cir. 2007). We have recognized that “there is a range of reasonable

sentences from which the district court may choose.” Talley, 431 F.3d at 788.

      Having reviewed the record and the briefs of the parties, we discern no

error. Pinero’s sentence is procedurally reasonable because the district court

correctly calculated the Guidelines, treated the Guidelines as advisory, considered

§ 3553(a)’s factors, and explained its chosen sentence. The district court was not

required to give advance notice that it intended to upwardly vary from the

Guidelines. See Irizarry, ___ U.S. at ____, 128 S.Ct. at 2202-03. Further, the

district court was not prohibited from considering aspects of Pinero’s conduct that


                                         4
enhanced his guideline offense level. See Amedeo, 487 F.3d at 833-34. Likewise,

Pinero’s sentence is substantively reasonable. In light of the life-ending injuries

sustained by one of the aliens during Pinero’s 1 ½ hour attempt to evade Coast

Guard officials and Pinero’s criminal history, the district court did not abuse its

discretion in finding that the advisory guideline range was inadequate and

determining that a substantially higher sentence was appropriate and reasonable.

Accordingly, we affirm.

      AFFIRMED.




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