                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________                FILED
                                                            U.S. COURT OF APPEALS
                                   No. 09-15345               ELEVENTH CIRCUIT
                                                                 OCTOBER 1, 2010
                               Non-Argument Calendar
                                                                   JOHN LEY
                             ________________________
                                                                    CLERK

                         D. C. Docket No. 08-00090-CR-3-MCR

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                       versus

JORGE MATA,
a.k.a. Officer George,

                                                              Defendant-Appellant.

                             ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________
                                (October 1, 2010)

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

      Jorge Mata appeals his 200-month sentence imposed after pleading guilty to

conspiracy to distribute and possess with intent to distribute 100 kilograms or more
of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), and 846.

On appeal, Mata raises two arguments. First, he asserts that the district court

clearly erred by rejecting his constitutional challenge to the validity of his state

court conviction for felony possession of cocaine, which was used to enhance

penalties pursuant to 21 U.S.C. § 841(b)(1)(B). Specifically, he argues that: (i) his

plea to that state charge was unknowing and involuntary because state-court

counsel incorrectly advised him that his conviction for possession of cocaine

would not be on his criminal record and could not be used against him in future

proceedings; and (ii) the court erroneously determined that his uncorroborated

testimony was insufficient to establish the invalidity of his prior conviction.

      Second, he argues that his sentence, imposed following an upward variance

from his guideline range of 151 to 188 months’ imprisonment, was substantively

unreasonable. For the following reasons, we affirm.

                                            I.

      When consideration of a sentencing challenge is appropriate, “we review for

clear error a district court’s factual findings, and review de novo the application of

the law to those facts.” United States v. De La Cruz Suarez, 601 F.3d 1202,

1220-21 (11th Cir.), cert. denied, __ U.S. __, 130 S.Ct. 3532 (2010).

      The statutory sentencing range for a violation of 21 U.S.C. § 841 that



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involves 100 kilograms or more of marijuana is 5 years’ to 40 years’ imprisonment

and at least 4 years’ supervised release. 21 U.S.C. § 841(b)(1)(B). Nevertheless, if

a person violates this section “after a prior conviction for a felony drug offense has

become final, such person shall be sentenced to a term of imprisonment which may

not be less than 10 years and not more than life imprisonment,” to be followed by

at least 8 years’ supervised release. Id.

      In order for the enhanced penalties to apply, the government must file, as it

did in this case, an information stating the previous conviction to be relied on, and

the defendant may then deny the conviction or claim that it was constitutionally

invalid by filing a written response. 21 U.S.C. § 851(a), (c). Mata filed a written

response challenging the constitutionality of his prior state drug conviction. If the

defendant challenges the use of a prior conviction, he must “set forth his claim, and

the factual basis therefor, with particularity in his response to the information[,]

[and] shall have the burden of proof by a preponderance of the evidence on any

issue of fact raised by the response.” 21 U.S.C. § 851(c)(2). The only evidence

Mata proffered in support of his claim that his state conviction was constitutionally

invalid was his own testimony that his state-court counsel told him that his

conviction could not be used against him in future proceedings.

      A guilty plea, which amounts to the waiver of the constitutional rights



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against self-incrimination, to trial by jury, and to confront one’s accuser’s, is only

valid if it is entered intelligently and voluntarily. See Boykin v. Alabama, 395 U.S.

238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). We must consider all of

the relevant circumstances surrounding the guilty plea to determine its

voluntariness. See United States v. Deal, 678 F.2d 1062, 1065 (11th Cir. 1982).

      “[T]he voluntariness of the plea depends on whether counsel’s advice was

within the range of competence demanded of attorneys in criminal cases.” Hill v.

Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quotation

omitted). Mata argues that his state-court counsel’s advice concerning the

collateral consequences of his guilty plea was wrong, and, therefore, the advice

was outside the range of competence demanded of attorneys.

      To succeed on an ineffective-assistance-of-counsel claim, a defendant must

show by a preponderance of the evidence that (1) counsel’s performance was

deficient, and (2) this deficiency resulted in prejudice. Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The two-part

standard is applicable to ineffective-assistance-of-counsel claims arising out of the

plea process, and the defendant can satisfy the “prejudice” requirement by showing

“a reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Hill, 474 U.S. at 57-59, 106



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S.Ct. at 369-70.

      Contrary to Mata’s assertion, state-court counsel is not required to warn a

defendant that his guilty plea “could have sentencing consequences if he [is] later

convicted in federal court.” McCarthy v. United States, 320 F.3d 1230, 1234 (11th

Cir. 2003). “Counsel’s affirmative misrepresentation in response to a specific

inquiry from the defendant may, however, under certain circumstances, constitute

ineffective assistance of counsel.” United States v. Campbell, 778 F.2d 764, 768-

69 (11th Cir. 1985), abrogated on other grounds by Padilla v. Kentucky, 130 S.Ct.

1473, 559 U.S. __, 176 L.Ed.2d 284 (2010) (declining to rule on the

collateral-versus-direct distinction).

      Here, the district court did not clearly err by finding that Mata failed to

satisfy his burden of proof under 21 U.S.C. § 851(c)(2). Specifically, the record

supports the court’s conclusion that Mata failed to prove, by a preponderance of

the evidence, that his guilty plea was constitutionally invalid because the only

evidence he proffered was his own uncorroborated testimony that state-court

counsel told him that his conviction could never be used against him in future

proceedings. Moreover, even if state-trial counsel misinformed Mata that his state

court conviction would carry no collateral consequences, there is no evidence in

the record that he would not have pleaded guilty if counsel had given correct



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advice. See Hill, 474 U.S. at 57-59, 106 S.Ct. at 369-70.

                                          II.

      Mata argues that the district court abused its discretion in imposing a

custodial sentence outside of the guidelines range. He asserts that his

upward-variance sentence is substantively unreasonable because any notion he had

of actually killing a potential government witness “was quickly put to rest,” and

such conduct was adequately covered by the obstruction-of-justice enhancement

and his resulting loss of an acceptance-of-responsibility reduction.

      We review the sentence imposed by the district court for reasonableness.

United States v. Williams, 526 F.3d 1312, 1321 (11th Cir. 2008). The Supreme

Court has clarified that the reasonableness standard means review for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d

445 (2007). “[T]he burden of establishing that the sentence is unreasonable in

light of the record and the § 3553(a) factors lies with the party challenging the

sentence.” Williams, 526 F.3d at 1322.

      A sentence is procedurally unreasonable if the district court failed to

calculate or incorrectly calculated the Guidelines, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, selected a sentence based on

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



                                           6
552 U.S. at 51, 128 S.Ct. at 597. The § 3553(a) factors include, inter alia, (1) the

applicable guideline range; (2) the nature and circumstances of the offense; (3) the

history and characteristics of the defendant; (4) the need for the sentence imposed

to reflect the seriousness of the offense, promote respect for the law, and provide

just punishment for the offense; (5) the need for adequate deterrence to criminal

conduct; (6) protection of the public from further crimes of the defendant; and

(7) the need to avoid unwarranted sentencing disparities. See 18 U.S.C.

§ 3553(a)(1)-(7).

      Once we conclude that the court made no procedural errors, we will then

consider “the substantive reasonableness of the sentence,” under the totality of the

circumstances. Gall, 552 U.S. at 51, 128 S.Ct. at 597. A sentence is substantively

unreasonable if it is not supported by the § 3553(a) factors. Id. at 56, 128 S.Ct.

at 600. “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court.” Williams, 526 F.3d at

1323 (quotation omitted).

      After correctly calculating the advisory guideline range, the court may

impose a more severe or lenient sentence, as long as the resulting sentence is

reasonable. United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006). If it

decides that a sentence outside that range is appropriate, it must “consider the



                                           7
extent of the deviation and ensure that the justification is sufficiently compelling to

support the degree of the variance.” Gall, 552 U.S. at 50, 128 S.Ct. at 597.

Accordingly, it must “includ[e] an explanation for any deviation from the

Guidelines range.” Id. We may consider the deviation, “but must give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” Id. “The fact that the appellate court might

reasonably have concluded that a different sentence was appropriate is insufficient

to justify reversal.” Id. Nonetheless, the district court’s discretion is not

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

      Initially, we note that Mata does not challenge the procedural reasonableness

of his sentence and has abandoned any claim in this respect. See United States v.

Arnoldo Guzman, 558 F.3d 1262, 1265 (11th Cir. 2009) (holding that the

defendant abandoned a sentencing challenge by failing to raise it on appeal).

Second, his upward-variance sentence was substantively reasonable. The district

court balanced Mata’s request for mitigation, based on his guilty plea, against

(a) the seriousness of his offense—an interstate conspiracy involving 483 pounds

(or 219 kilograms) of marijuana, (b) the fact that he obstructed justice by soliciting

the murder of a potential witness, and (c) the fact that, rather than accepting

responsibility, he attempted to recant his prior admissions as to his role as a drug



                                            8
supplier.

      In addition, the record reflects that the court gave due consideration to

mitigating factors because it began from the midpoint of his guideline

range—rather than the high end—before applying a 30-month variance, and

because Mata’s 200-month sentence exceeded the high end of his guideline range

by only 12 months, falling substantially below the statutory maximum term of life

imprisonment. Thus, the court’s reasoning merits deference and provides a

sufficiently compelling justification for the degree of variance in the instant case.

See Gall, 552 U.S. at 50, 128 S.Ct. at 597; United States v. Shaw, 560 F.3d 1230,

1239-41 (11th Cir.), cert. denied, 129 S.Ct. 2847 (2009). Accordingly, we affirm

Mata’s 200-month sentence.

      AFFIRMED.




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