           Case: 18-13180   Date Filed: 04/09/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13180
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:15-cr-20736-DMM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

MARIO RAPALO-SARMIENTO,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (April 9, 2019)

Before WILLIAM PRYOR, MARTIN, and GRANT, Circuit Judges.

PER CURIAM:
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      Mario Rapalo-Sarmiento appeals the substantive reasonableness of his

18-month sentence imposed after he was convicted of illegal reentry after removal

in violation of 8 U.S.C. § 1326(a). He argues the district court failed to consider

and properly weigh threats and violence he experienced at the hands of MS-13, a

prominent gang in Honduras, that prompted him to illegally enter, reenter, and

commit crimes in the United States. After careful review, we affirm.

                                           I.

      Rapalo-Sarmiento is a native and citizen of Honduras. In 1998, he illegally

entered the United States and, in 2003, was convicted of possession or purchase of

narcotics in California. He was removed twice from the United States, once in

May 2003 and again March 2004. After returning a third time, Rapalo-Sarmiento

was arrested on August 2015 in Florida on charges of cocaine trafficking and

money laundering. He was found guilty of these charges and sentenced to three

years in Florida state prison. He was released on May 1, 2018. Federal authorities

then arrested Rapalo-Sarmiento on May 21, 2018 and charged him with one count

of illegal reentry after removal in violation of 8 U.S.C. §§ 1326(a) and (b)(2).

Rapalo-Sarmiento pled guilty to the charge of illegal reentry after removal, and the

modified sentencing report recommended a sentence of 15 to 21 months based on

the United States Sentencing Guidelines.




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      At sentencing, Rapalo-Sarmiento moved for a downward variance to time

served—approximately two months. He argued the district court should vary

downward because his previous drug-related offenses and illegal entry and reentry

into the United States were caused by violence and duress he experienced by MS-

13. He explained he first entered the United States illegally to escape MS-13 after

they shot him in the foot and leg as punishment for refusing to join. Once he came

to the United States, Rapalo-Sarmiento committed a drug offense at the behest of

MS-13 members in California. He informed the district court that after he was

removed to Honduras, members of MS-13 “entered his home, held him at

gunpoint, removed his clothing and belongings from him, and threatened to kill

him.” He proffered to the district court an untranslated, uncertified record

corroborating his account of the attack after his removal. The district court did not

make the document part of the sentencing record. Because of this attack, Rapalo-

Sarmiento says he illegally returned to the United States. He explained to the

district court that his 2015 offense occurred only because MS-13 members who

were on the “lookout for him.” While serving his prison sentence for his 2015

conviction, members of MS-13 stabbed him five times “for leaving [Honduras].”

      After hearing Rapalo-Sarmiento’s argument and the government’s rebuttal,

the district court imposed a sentence of 18-months imprisonment. In reaching its

determination, the district court stated it was “apparent . . . that Mr. Rapalo-

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Sarmiento ha[d] faced difficulties in his home county and that perhaps it followed

him here” to the United States. But the district court also noted Rapalo-Sarmiento

had two previous narcotics convictions in the United States and, as a result, a

sentence “within the guideline range [was] appropriate.” Rapalo-Sarmiento now

appeals his 18-months sentence, arguing that it was substantively unreasonable in

light of the context of his illegal reentry and criminal history.

                                           II.

      We review the substantive reasonableness of a sentence under a deferential

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

586, 591 (2007). The district must consider the factors set forth in 18 U.S.C.

§ 3553(a), which include, in relevant part, the “nature and circumstances of the

offense and the history and characteristics of the defendant” when determining a

reasonable sentence. United States v. Irey, 612 F.3d 1160, 1198 (11th Cir. 2010)

(en banc) (quotation marks omitted). “A district court abuses its discretion when it

(1) fails to afford consideration to relevant factors that were due significant weight,

(2) gives significant weight to an improper or irrelevant factor, or (3) commits a

clear error of judgment in considering the proper factors.” Id. at 1189 (quotation

marks omitted). “The party challenging a sentence has the burden of showing that

the sentence is unreasonable in light of the entire record, the § 3553(a) factors, and




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the substantial deference afforded sentencing courts.” United States v. Rosales-

Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).

                                          III.

      Rapalo-Sarmiento argues the district court abused its discretion because his

sentence is greater than necessary to achieve the purpose of § 3553(a). He

contends the district court failed to consider and “accord proper weight to the

threats of violence that animated his entries into the United States and the coercion

underlying his commission of offenses while present in the United States.”

      Rapalo-Sarmiento’s argument is premised on the language found in

§ 3553(a), which states “[t]he court shall impose a sentence sufficient, but not

greater than necessary” to achieve the statute’s purposes. See 18 U.S.C.

§ 3553(a)(2) (listing permissible considerations in fashioning a sentence). This

Court has interpreted this language to require sentences that are “not too short and

not too long.” See Irey, 612 F.3d at 1197. This Court has also held how much

weight each § 3553(a) factor receives “is a matter committed to the sound

discretion of the district court.” United States v. Kuhlman, 711 F.3d 1321, 1327

(11th Cir. 2013) (quotation marks omitted). As a result, this Court cannot

substitute its judgment for that of the district court in weighing the relevant

§ 3553(a) factors. Id. “[S]ignificant reliance on a single factor does not

necessarily render a sentence unreasonable.” Id.

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      The district court considered Rapalo-Sarmiento’s circumstances and the

context of his criminal history. Although the district court did not make the

Honduran document part of the sentencing record, it still considered the relevant

context for his crimes. Indeed, the district court acknowledged that Rapalo-

Sarmiento faced “difficulties” in Honduras that “perhaps . . . followed him” to the

United States.

      Balancing the circumstances of Rapalo-Sarmiento’s crimes and background

with the nature of his narcotics offenses, the district court found that a sentence

within the guideline range was appropriate. While the district court may have

weighted his two narcotics offenses significantly more than the context of his

offenses, we cannot say this amounted to an abuse of discretion. See Kuhlman,

711 F.3d at 1327. We therefore hold that Rapalo-Sarmiento’s sentence was

substantively reasonable.

      AFFIRMED.




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