              Case: 16-10496     Date Filed: 10/19/2016   Page: 1 of 5


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-10496
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 1:15-cr-00291-SCJ-AJB-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

MARCELINO SANCHEZ-MATA,

                                                              Defendant-Appellant.

                           ________________________

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

                                (October 19, 2016)

Before HULL, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      After pleading guilty to reentry of a deported alien, in violation of 8 U.S.C.

§ 1326(a), (b)(2), Marcelino Sanchez-Mata (“Sanchez”) appeals his 54-month
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sentence, imposed below the advisory guidelines range of 57 to 71 months

imprisonment. On appeal, Sanchez argues that his sentence is substantively

unreasonable. After review, we affirm.

                                  I. REASONABLENESS

       “We review the reasonableness of a sentence for an abuse of discretion using

a two-step process.” United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014)

(quotation marks omitted). We look first at whether the sentencing court

committed any procedural error and then at whether the sentence is substantively

unreasonable in light of the 18 U.S.C. § 3553(a) factors and the totality of the

circumstances.1 Id. The party who challenges the sentence bears the burden to

show it is unreasonable. United States v. Alvarado, 808 F.3d 474, 496 (11th Cir.

2015). The weight given to any particular § 3553(a) factor is within the district

court’s discretion, and this Court will not substitute its judgment for that of the

district court. Id. We will reverse a sentence only if we are “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


       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 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
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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of reasonable sentences dictated by the facts of the case.” United States v. Pugh,

515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted).

                            II. SANCHEZ’S CLAIM

      Sanchez does not raise any procedural error with respect to his sentencing or

argue that his guidelines range was incorrectly calculated. As to substantive

reasonableness, Sanchez contends the district court should have given him a more

substantial downward variance because his criminal history category of IV,

although correctly calculated, overstated the seriousness of his criminal history and

because he re-entered the United States only to reunite with his children.

      Sanchez has not shown that his 54-month sentence is substantively

unreasonable. At sentencing, Sanchez conceded that his criminal history category

IV was properly calculated, but argued it overstated his criminal history. In asking

for a downward variance, Sanchez emphasized: (1) the passage of time between his

2005 Georgia conviction for conspiracy to commit methamphetamine trafficking

and his 2013 California conviction for possession for sale of methamphetamine;

(2) the fact that his 2013 conviction increased both his offense level (pursuant to

U.S.S.G. § 2L1.2(b)(1)(A)(i)) and his criminal history category; (3) his difficult

childhood in Mexico; and (4) his reason for illegally reentering, which was to see

his six U.S.-born children from whom he had been estranged. Sanchez asked for a

46-month sentence, the low end of the guidelines ranges that would have resulted


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if he had a criminal history category of III. Sanchez then addressed the court

personally and asked for a fair sentence so he could return to Mexico and care for

his three youngest children living there.

      The government suggested that a downward variance was appropriate to

account for the time that Sanchez served in Immigration and Customs Enforcement

(“ICE”) custody, but opposed any further variance based on Sanchez’s criminal

history. The government pointed out, inter alia, that Sanchez committed new

criminal conduct upon reentering the United States and that Sanchez’s offense

level and criminal history category were properly increased based on his 2013

Georgia drug trafficking conviction.

      After hearing the parties’ arguments and calculating the advisory guidelines

range of 57 to 71 months, the district court agreed to vary downward by three

months for Sanchez’s time in ICE custody. However, the district court rejected

Sanchez’s request for a variance based on his criminal history category, as follows:

      Taking into consideration the [§]3553(a) factors, I am going to
      respectfully . . . disagree with you on changing the criminal history
      category. In looking at this, Mr. Sanchez-Mata, you have prior drug
      convictions in this case to go along with the fact that you were
      previously deported and then returned to America.

The district court stated that “with that in mind,” the appropriate sentence was 54

months.




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      The district court did not abuse its discretion in denying Sanchez’s request

for an additional 8-month downward variance based on Sanchez’s criminal history.

In addition to the two drug trafficking convictions in 2005 and 2013 that counted

toward Sanchez’s criminal history score of 8 and criminal history category of IV,

Sanchez also had prior California convictions for possession or purchase of

narcotics for sale in 1991 and public intoxication and vandalism in 1994, which did

not receive any criminal history points. Further, Sanchez committed a second

methamphetamine trafficking offense in the United States after having been

deported and while still under his probationary sentence for his first

methamphetamine trafficking offense. The district court considered Sanchez’s

mitigating personal circumstances, such as his obligations to his family and his

difficult upbringing, but obviously concluded that they were outweighed by his

history of drug convictions, both before and after his deportation, and the § 3553(a)

factors that history implicated.

      Sanchez has given us no reason here to substitute our judgment for the

district court’s in weighing the § 3553(a) factors. See United States v. Dougherty,

754 F.3d 1353, 1361 (11th Cir. 2014). Under the circumstances, the district court

was within its discretion to conclude that Sanchez’s criminal history was not

overrepresented and to refuse to vary downward any further.

      AFFIRMED.


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