           Case: 13-10626   Date Filed: 08/07/2013   Page: 1 of 4




                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10626
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:12-cr-00253-WBH-JSA-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus



MARCELINO GONZALES-ALVARADO,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 7, 2013)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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       After pleading guilty, Marcelino Gonzales-Alvarado appeals his 21-month

sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and

(b)(2). On appeal, Gonzales-Alvarado argues that his 21-month sentence, below

his advisory guidelines range of 24 to 30 months’ imprisonment, is substantively

unreasonable. After review, we affirm.

       We review the reasonableness of a sentence under the deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). We look first at whether the district court committed any significant

procedural error and then at whether the sentence is substantively unreasonable

under the totality of the circumstances. United States v. Pugh, 515 F.3d 1179,

1190 (11th Cir. 2008). 1

       The abuse of discretion standard “allows a range of choice for the district

court, so long as that choice does not constitute a clear error of judgment.” United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal quotation

marks omitted). The party challenging the sentence bears the burden of proving

the sentence is unreasonable in light of the record and the 18 U.S.C. § 3553(a)

factors. Pugh, 515 F.3d at 1190.2


       1
         Gonzales-Alvarado does not contend that his sentence is procedurally unreasonable or
point to any procedural error at his sentencing.
       2
         The § 3553(a) factors 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
                                                      2
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       Gonzales-Alvarado contends the district court should have imposed a bigger

downward variance because, although the guidelines calculations were technically

correct, Gonzales-Alvarado’s criminal history category IV overstated his criminal

past and the eight-level aggravated-felon enhancement, pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C), overstated the seriousness of his offense.

       Gonzales-Alvarado has not shown that his 21-month sentence is

substantively unreasonable. When Gonzales-Alvarado was deported to Mexico in

November 1999, he already had three battery convictions and convictions for

leaving the scene of an accident and driving without a license. Sometime in either

late 1999 or 2000, Gonzales-Alvarado reentered the United States. At that time,

Gonzales-Alvarado was still on probation for his most recent battery conviction.

Gonzales-Alvarado does not dispute that each of the three battery convictions

qualified as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C) or that his

prior convictions and probationary status resulted in a criminal history score of 7

and a criminal history category of IV.

       Moreover, at sentencing, the district court considered Gonzales-Alvarado’s

arguments that his criminal history category and total offense level did not

accurately reflect his actual criminal history and the seriousness of his current

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 Guidelines 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. 18 U.S.C. § 3553(a).
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reentry offense. Indeed, the district court paid particular attention to Gonzales-

Alvarado’s contention that the two additional criminal history points imposed due

to his current probationary status were unfair and imposed a 21-month sentence,

within the range it determined would have applied (18 to 24 months) if those two

criminal history points were omitted and Gonzales-Alvarado had only a criminal

history category of III.

      However, the district court also stressed the need for the sentence to deter

Gonzales-Alvarado from reentering the country again and to deter others from

committing the same offense. Clearly, the district court considered Gonzales-

Alvarado’s mitigation arguments and gave Gonzales-Alvarado a three-month

downward variance based upon them, but was unwilling to vary further downward

given the need for deterrence. We cannot say the district court’s refusal to vary

further downward was an abuse of discretion.

      Finally, Gonzales-Alvarado cites two cases in which this Court affirmed

larger downward variances than the one sought by Gonzales-Alvarado at

sentencing. These cases bear no resemblance to the facts of Gonzales-Alvarado’s

case, and do not support a finding that Gonzales-Alvarado’s sentence is

unreasonable. Rather, these cases merely demonstrate that the reasonableness of a

particular sentence turns on the totality of the circumstances presented in that case.

      AFFIRMED.


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