              Case: 12-16601    Date Filed: 08/19/2013   Page: 1 of 6


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-16601
                            Non-Argument Calendar
                          ________________________

                   D. C. Docket No. 1:12-cr-00279-SCJ-RGV-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

CHRISTIAN ESPINOSA,

                                                              Defendant-Appellant.

                          ________________________

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

                                (August 19, 2013)

Before CARNES, Chief Judge, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Christian Espinosa appeals his 52-month sentence, imposed after he pled

guilty to 1 count of re-entry of a removed alien, in violation of 8 U.S.C. § 1326(a)

and (b)(2).   On appeal, Espinosa argues that his sentence was substantively
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unreasonable because the sentence imposed gives too much weight to his single

prior drug conviction. After careful review, we affirm.

         We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir.2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)). In reviewing sentences for reasonableness, we typically perform two

steps.    Id. at 1190.      First, we “‘ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 552 U.S.

38, 51 (2007)).1

         If we conclude that the district court did not procedurally err, we consider

the “‘substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard,’” based on the “‘totality of the circumstances.’” Id. (quoting


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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Gall, 552 U.S. at 51). Applying “deferential” review, we must determine “whether

the sentence imposed by the district court fails to achieve the purposes of

sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784,

788 (11th Cir.2005). “[W]e will not second guess the weight (or lack thereof) that

the [court] accorded to a given factor ... as long as the sentence ultimately imposed

is reasonable in light of all the circumstances presented.” United States v. Snipes,

611 F.3d 855, 872 (11th Cir.2010) (quotation, alteration and emphasis omitted),

cert. denied, 131 S.Ct. 2962 (2011). We will not reweigh the relevant § 3553(a)

factors, and will not remand for resentencing unless the district court committed a

clear error of judgment in weighing the § 3553(a) factors by imposing a sentence

outside the range of reasonable sentences.    United States v. Langston, 590 F.3d

1226, 1237 (11th Cir. 2009). However, a district court’s unjustified reliance upon

any one § 3553(a) factor may be a symptom of an unreasonable sentence. United

States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006).

      The party challenging the sentence bears the burden to show it is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert.

denied, 131 S.Ct. 674 (2010). A sentence imposed well below the statutory

maximum penalty is another indicator of a reasonable sentence. See United States

v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding that the sentence was

reasonable in part because it was well below the statutory maximum).


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       When a guidelines provision is not supported by “empirical data and

national experience,” a district court does not abuse its discretion if it concludes

that a within-guidelines sentence is “greater than necessary to achieve § 3553(a)’s

purposes.” Kimbrough v. United States, 552 U.S. 85, 109-10 (2007) (quotation

omitted). But this lack of empirical evidence “is not an independent ground that

compels the invalidation of a guideline.” Snipes, 611 F.3d at 870. It is merely

“one factor” that a district court could consider in exercising its right to depart

from the guidelines. Id.

       Double counting is impermissible when “one part of the Guidelines is

applied to increase a defendant’s punishment on account of a kind of harm that has

already been fully accounted for by application of another part of the Guidelines.”

United States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999)

(quotation omitted). It is permitted when the Sentencing Commission intended the

result, and each guideline section in question concerns a conceptually separate

notion related to sentencing. Id. at 1310.

       In this case, Espinosa has failed to show that his sentence was substantively

unreasonable.2      As for his argument that the 16-level enhancement under §

2L1.2(b)(1)(A) for his prior drug felony conviction was arbitrary and without

2
       Espinosa raises no challenge to the procedural reasonableness of his sentence, and
accordingly, has waived any claim in this respect. See United States v. Jernigan, 341 F.3d 1273,
1283 n. 8 (11th Cir.2003) (holding that issues not raised in an initial brief on appeal are deemed
abandoned).
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empirical justification, we are unconvinced.       As we’ve said, “the absence of

empirical evidence is not an independent ground that compels the invalidation of a

guideline.” Snipes, 611 F.3d at 870. Indeed, the Supreme Court did not invalidate

the guideline in question in Kimbrough, but instead held that a lack of empirical

evidence was one factor that a district court could consider in exercising its right to

depart from the guidelines. Espinosa attempts to transform this right of the district

court into a duty to do so. But standing on its own, the lack of empirical evidence

does “not require the wholesale invalidation of sentencing guidelines.” Snipes,

611 F.3d at 870.

      We are also unpersuaded by Espinosa’s claim that it is substantively

unreasonable that his same prior drug conviction enhanced his sentence both by

increasing his offense level and by raising his criminal history category. We have

held that the Sentencing Commission “clearly intended prior felonies to count

against defendants under both the criminal history section and § 2L1.2.” United

States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992).           Moreover, this is

permissible because the purpose of the criminal history section is “to punish likely

recidivists more severely, while the enhancement under § 2L1.2 is designed to

deter aliens who have been convicted of a felony from re-entering the United

States.” Id. Thus, this supposed “double counting” is permissible because “the




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Sentencing Commission intended the result, and . . . because each section concerns

conceptually separate notions relating to sentencing.” Id. (quotation omitted).

      Finally, there is no merit to the claim that the district court abused its

discretion in its consideration of the § 3553(a) factors. For starters, his sentence of

52 months’ imprisonment fell within the guideline range of 46 to 57 months, and

we would ordinarily expect such a sentence to be reasonable. Moreover, his

sentence was also well below the 20-year statutory maximum penalty. While the

district court did give specific emphasis to the commutation of Espinosa’s prior

drug conviction, there is nothing in the record to indicate that it did so “single-

mindedly” to the detriment of all the other § 3553(a) factors. See Crisp, 454 F.3d

at 1292. Rather, the record shows that the district court considered mitigating

evidence and noted specifically that it had read all of the letters from Espinosa’s

family. The court also noted its concern that part of Espinosa’s prior drug sentence

had been commuted pursuant to his initial removal from this country and that he

“more or less violate[d] the terms of conditions of probation” by returning. Thus,

the district court properly considered the § 3553 factors by observing, among other

things, that sentence within the guidelines range was necessary to promote respect

for the law and provide just punishment. Accordingly, Espinosa has not shown

that his sentence was substantively unreasonable.

      AFFIRMED.


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