                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                                                        U.S. COURT OF APPEALS
                        ________________________          ELEVENTH CIRCUIT
                                                           FEBRUARY 14, 2012
                              No. 11-14309                     JOHN LEY
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D.C. Docket No. 2:11-cr-14017-KMM-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus


ENRIQUE JIMINEZ-LOPEZ,


                                                          Defendant-Appellant.

                       __________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                             (February 14, 2012)

Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.

PER CURIAM:

     Appellant Enrique Jiminez-Lopez appeals his 51-month high end of the
guideline range sentence, imposed after pleading guilty to one count of reentry of

a deported alien in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Jiminez-

Lopez argues that his sentence was substantively unreasonable because it is higher

than necessary to effectuate the purpose and intent of the § 3553(a) factors. He

emphasizes the immigration nature of his offense, his clean criminal history

outside of one prior conviction, and the unreasonably harsh result of the 16-level

increase based on his sole prior conviction.

      This court reviews the reasonableness of a sentence under a deferential

abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128

S. Ct. 586, 591, 169 L. Ed. 2d 445 (2007). This Court may “set aside a sentence

only if we determine, after giving a full measure of deference to the sentencing

judge, that the sentence imposed truly is unreasonable.” United States v. Irey, 612

F.3d 1160, 1191 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011).

      The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

the need 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 the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In

imposing a particular sentence, the court must also consider the nature and


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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 restitution to victims. Id.

§ 3553(a)(1), (3)-(7).

      In reviewing the sentence, under the prism of abuse of discretion, this court

first ensures that the sentence was procedurally reasonable, meaning the district

court properly calculated the guideline range, treated the Guidelines as advisory

and not mandatory, considered the § 3553(a) factors, did not select a sentence

based on clearly erroneous facts, and adequately explained the chosen sentence.

Gall, 552 U.S. at 51, 128 S. Ct. at 597. Once the court determines that a sentence

is procedurally sound, it examines whether the sentence was substantively

reasonable in light of the totality of the circumstances. Id.

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

unreasonable in light of the record and the § 3553(a) factors.” United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir.), cert. denied, 131 S. Ct. 674 (2010).

Although this Court does not apply a presumption of reasonableness for sentences

falling within the guidelines range, “ordinarily [this court] would expect a

sentence within the Guidelines range to be reasonable.” United States v. Talley,


                                          3
431 F.3d 784, 788 (11th Cir. 2005). A sentence imposed well below the statutory

maximum penalty is another indicator of a reasonable sentence. See e.g., United

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

      This court reverses only if “left with the definite and firm conviction that

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.” Irey, 612 F.3d at 1190 (quoting United States v.

Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). “The fact that the appellate court

might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S.

Ct. at 597.

      Based on our review of the record, we conclude that Jiminez-Lopez’s 51-

month sentence is reasonable. The sentence was within the guideline range, and

we expect such a sentence to be reasonable. See Talley, 431 F.3d at 788. Though

Jiminez-Lopez points to the nonviolent nature of his charged offense and his

limited criminal history as mitigating factors, the court explicitly stated that it had

considered the statements of the parties, the presentence report, which included the

violent conduct underlying Jiminez-Lopez’s arrest, and the § 3553(a) factors.

Jiminez-Lopez also argues that the 16-level increase in his offense level is too


                                           4
harsh a punishment, but the increase is arrived at by following the Sentencing

Guidelines and none of the facts used to calculate Jiminez-Lopez’s range were

erroneous. In short, Jiminez-Lopez has not met his burden to show an abuse of

discretion. Accordingly, we affirm his sentence.

      AFFIRMED.




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