          Case: 12-13314   Date Filed: 05/09/2013   Page: 1 of 8




                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-13314
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 1:09-cr-00170-WKW-TFM-1



UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                 versus

LUIS ERNESTO HERNANDEZ-ARELLANO,
 a.k.a. Carlos Cortez,
a.k.a. Cesar Garza,

                                                    Defendant-Appellant.

                     ________________________

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

                             (May 9, 2013)
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Before: DUBINA, Chief Judge, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Appellant Luis Hernandez-Arellano, a Mexican citizen, appeals the district

court’s imposition of a 120-month sentence for his conviction for one count of

reentering the country as a deported alien, in violation of 8 U.S.C. § 1326(a),

(b)(2), and a second, consecutive 24-month revocation sentence for violating the

terms of his supervised release in a prior federal case (“Hernandez-Arellano I”).

      In 2006, Hernandez-Arellano pled guilty to conspiring to distribute powder

cocaine in Hernandez-Arellano I. The district court later sentenced him to 37

months’ imprisonment and three years of supervised release, subject to certain

conditions directing him, in part, not to return illegally to the United States.

Records show that he was released from custody on January 13, 2009, and

deported from the United States several days later.

      In October 2009, federal authorities charged Hernandez-Arellano in the

present case, and he later pled guilty. In 2011, the probation office moved to

revoke Hernandez-Arellano’s supervised release, which was part of his sentence in

Hernandez-Arellano I, noting, among other things, that by reentering the country

illegally in the present case, he violated the conditions of his earlier supervised

release. Hernandez-Arellano pled guilty to the violations, and following a

consolidated hearing, the district court sentenced him to 120 months’


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imprisonment in the present case, plus 24 months’ imprisonment in the revocation

proceeding.

       On appeal, Hernandez-Arellano essentially argues that the district court

abused its discretion in imposing a 120-month sentence in the present case because

it was greater than necessary under 18 U.S.C. § 3553(a). Specifically, the court

applied an upward variance based solely on his criminal history, which was already

factored into the guideline calculations. Hernandez-Arellano also argues that his

24-month revocation sentence, particularly in conjunction with his 120-month

sentence, was substantively unreasonable. Thus, he claims that a 144-month total

sentence, imposed at 1.5 times the high end of the guideline range, created an

impact that went beyond the necessity of imposing a sentence under 18 U.S.C. §

3553(a).1

       We review “all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.”

United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (internal quotation

marks omitted). A substantive reasonableness review requires us to “evaluate


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  Although Hernandez-Arellano’s notice of appeal only expressly designated the present case,
and did not mention Hernandez-Arellano I, we will nevertheless construe his appeal as jointly
challenging the substantive reasonableness of both sentences given his overriding intent, as
evidenced by the arguments in his brief, to appeal his total 144-month sentence. See Kicklighter
v. Nails by Jannee, Inc., 616 F.2d 734, 738 n.1 (5th Cir. 1980); Smith v. Atlas Off-Shore Boat
Serv., Inc., 653 F.2d 1057, 1059 n.1 (5th Cir. Unit A Aug. 1981). We have adopted as binding all
Fifth Circuit precedent decided before October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981).
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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). The party challenging the sentence “bears the burden of

establishing that the sentence is unreasonable in light of both [the] record and the

factors in section 3553(a).” Id. We will remand for resentencing only if “the

district court 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. Pugh, 515 F.3d 1179, 1191 (11th Cir.

2008) (internal quotation marks omitted).

      Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary,” to comply with the purposes of

sentencing. 18 U.S.C. § 3553(a). Namely, the purposes of sentencing include the

need for the sentence to reflect the seriousness of the offense, promote respect for

the law, provide just punishment for the offense, deter criminal conduct, and

protect the public from future crimes of the defendant. Id. § 3553(a)(2). The

sentencing court must also consider the following factors in determining a

particular sentence: the nature and circumstances of the offense, the history and

characteristics of the defendant, the kinds of sentences available, the applicable

guideline range, the pertinent policy statements of the Sentencing Commission, the

need to avoid unwarranted sentencing disparities, and the need to provide


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restitution to victims. Id. § 3553(a)(1), (3)-(7). However, the weight accorded to

each of the § 3553(a) factors is within the district court’s sound discretion. See

United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

      Furthermore, we have recognized that “there is a range of reasonable

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

sentence imposed well below the statutory maximum penalty is one indicator of a

reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008). Necessarily, there are also “sentences outside the range of reasonableness

that do not achieve the purposes of sentencing stated in § 3553(a) and that thus the

district court may not impose.” United States v. Martin, 455 F.3d 1227, 1237

(11th Cir. 2006). For example, a sentence may be substantively unreasonable if a

district court unjustifiably relied on any one § 3553(a) factor, failed to consider

pertinent § 3553(a) factors, selected the sentence arbitrarily, or based the sentence

on impermissible factors. Pugh, 515 F.3d at 1191-92. Finally, while we may take

the degree of variance into account and consider the extent of a deviation from the

guidelines, we reject “an appellate rule that requires ‘extraordinary’ circumstances

to justify a sentence outside the Guidelines range.” Gall v. United States, 552 U.S.

38, 47 128 S. Ct. 586, 595 (2007).

      After considering the § 3553(a) factors noted above, a district court may

revoke a term of supervised release and impose a term of imprisonment if it


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determines by a preponderance of the evidence that a violation has occurred. 18

U.S.C. § 3583(e)(3). Section 3553(a)(4)(B) requires a sentencing court to consider

the policy statements of the Sentencing Commission with regard to a violation of

supervised release, although it is recognized that those policies are not binding. See

United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006). The introduction to

Chapter Seven of the Sentencing Guidelines, which sets forth the policy statements

for violations of supervised release, provides that “at revocation the court should

sanction primarily the defendant’s breach of trust . . . . [and] the sanction for the

violation of trust should be in addition, or consecutive, to any sentence imposed for

the new conduct.” U.S.S.G., ch. 7, pt. A, comment 3(b). More specifically, “the

Sentencing Commission's policy regarding sentences for supervised release

violations is plainly set forth at U.S.S.G. § 7B1.3(f).” United States v. Flowers, 13

F.3d 395, 397 (11th Cir. 1994). This policy states that:


      Any term of imprisonment imposed upon the revocation of probation
      or supervised release shall be ordered to be served consecutively to
      any sentence of imprisonment that the defendant is serving, whether
      or not the sentence of imprisonment being served resulted from the
      conduct that is the basis of the revocation of probation or supervised
      release.

U.S.S.G. § 7B1.3(f).

      Hernandez-Arellano fails to demonstrate that his 120-month sentence was

substantively unreasonable in light of the record and the § 3553(a) factors. While


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the sentence was outside of the guidelines range, it was still well below the 20-year

statutory maximum penalty. See Gonzalez, 550 F.3d at 1324. Moreover, the

sentence met the goals encompassed within 18 U.S.C. § 3553(a). Considering

Hernandez-Arellano’s criminal history, including his six illegal reentries, and his

propensity for violating the terms of his supervised release, a variance upward

from the guideline range was necessary to promote respect for the law, provide just

punishment, and deter him from future criminal activity. See 18 U.S.C.

§ 3553(a)(2). Additionally, contrary to Hernandez-Arellano’s assertions, the

district court’s emphasis on his criminal history did not render his sentence

unreasonable, as the weight given to any particular factor is left to the sound

discretion of the court absent a clear error in judgment. Clay, 483 F.3d at 743.

      Finally, we conclude that the 24-month revocation sentence was

substantively reasonable, on its own, because it met the statutory sentencing goals

under 18 U.S.C. § 3553(a), and was imposed at the bottom of the guideline range.

Even when combined with the 120-month sentence, Hernandez-Arellano’s

resulting total 144-month sentence was not substantively unreasonable for the

same reasons noted above. Given the Sentencing Commission’s policy and our

binding precedent, we conclude that the district court’s decision to order that the

24-month revocation sentence run consecutive to Hernandez-Arellano’s 120-month

sentence did not render his total sentence unreasonable or greater than necessary to


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comply with the purposes of sentencing. U.S.S.G. § 7B1.3(f); see Flowers, 13 F.

3d at 397.

      Because the district court did not abuse its discretion in imposing the total

144-month sentence, we affirm Hernandez-Arellano’s sentences.

      AFFIRMED.




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