                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               October 11, 2007
                              No. 07-10104                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 06-80064-CR-DMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JOSE CALLES,

                                                          Defendant-Appellant.


                        ________________________

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

                             (October 11, 2007)

Before BIRCH, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     Jose Calles appeals as unreasonable his 240-month sentence imposed after
he pled guilty to kidnaping, in violation of 18 U.S.C. § 1201(a), and interstate

transportation of a stolen vehicle, in violation of 18 U.S.C. § 2312. We affirm.

                                    I. BACKGROUND

      Calles is a member of Mara Salvatrucha 13 (“MS-13"), a violent street gang

with origins in El Salvador. On January 11, 2006, a fellow MS-13 member,

Douglas Collocho, told Calles and some other gang members that there was trouble

with some black males in their apartment complex parking lot in Virginia Beach,

Virginia. Calles and three other MS-13 members armed themselves with machetes

and handguns and went to the parking lot in their apartment complex, where

Collocho fired four shots at a black male. Calles’s brother, Victor Calles, learned

of the shooting and decided that he and Jose should go to West Palm Beach,

Florida, to live with their aunt.

      Victor Calles lived with his girlfriend, Christina Esfandiari, who was known

to have a large amount of money because of a legal settlement. On January 16,

2006, Jose Calles, Victor Calles, Javier Santos, and Joel Muratti-Hani attacked

Esfandiari (“the victim”). The four men went into the victim’s bedroom and struck

her repeatedly. Jose Calles grabbed a knife from the kitchen and held it to the

victim’s throat; the men told the victim not to scream or they would kill her. Soon

after attacking the victim, Victor Calles and Santos left with the victim’s credit



                                           2
cards and a personal identification number so that they could obtain cash. While

Victor Calles and Santos were away, Muratti-Hani decided that he wanted to rape

the victim; Jose Calles assisted in raping the victim by pulling her legs apart so that

Muratti-Hani could penetrate her. Jose Calles encouraged Muratti-Hani and

taunted the victim while Muratti-Hani raped her. When Victor Calles and Santos

returned, the four men forced the victim out of her apartment and into her vehicle.

As they left the victim’s apartment, Jose Calles pointed to a picture of her children

and told her to say goodbye to her young sons, because she was never going to see

them again. In addition to the victim’s car, the four men took other personal

property, including her credit cards, jewelry, two computers, and a plasma

television.

      They drove the victim’s car from Virginia Beach, Virginia, to West Palm

Beach, Florida. Upon arrival in West Palm Beach, they checked into a Dollar Inn

Motel. On January 17, 2006, at 8:00 A.M., the victim noticed that the four men

were asleep, so she ran outside and called for help. Officers from the West Palm

Beach Police Department arrived and took Victor and Jose Calles into custody.

      Jose Calles pled guilty to a two-count indictment for kidnaping under §

1201(a) and interstate transportation of a stolen vehicle under § 2312. For the

kidnaping count, the probation officer calculated Calles’s adjusted offense level to



                                           3
be 42, with a reduction of two levels for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1(a), which gave him a total adjusted offense level of 40. For the

theft count, the probation officer calculated an adjusted base offense level of 10.

After applying the grouping rules, the probation officer calculated Calles’s total

offense level to be 40.

      Calles’s presentence investigation report (“PSI”) shows that Calles, who was

eighteen years old at the time with a history of drug and alcohol abuse, has a

Criminal History Category of I. Specifically, Calles admitted to having used

marijuana, powder cocaine, and crack cocaine. He reported that he would use

crack cocaine for three or four days at a time. Calles had several disciplinary

problems while in school, including obscene gestures, possession of marijuana,

disrupting class, sexual harassment, and bringing a knife to school. The probation

officer calculated the resulting Sentencing Guidelines range to be 292-365 months

of imprisonment.

      At the sentencing hearing, the government made a motion for a downward

departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The government

moved for a twenty percent downward departure because Calles pled guilty the

morning of his trial and agreed to testify truthfully before the jury. The

government urged the district judge not to go below a twenty percent reduction



                                           4
because Calles did not agree to testify until the morning of his trial, and he has no

moral development, demonstrated by his drug usage and problems in school. The

government further maintained that the public needed to be protected from Calles,

and that only a long sentence would provide protection. Based on a twenty percent

reduction, the government urged that Calles’s sentence should be 234 months.

      Defense counsel argued that Calles should receive a lower sentence because

of his age and cooperation with the government by testifying against his brother,

Victor, at Victor’s trial. Additionally, counsel argued that Calles is not an

inherently bad person and had no history of violence. Counsel further suggested

that imprisonment for ten years (120 months) or less would be appropriate because

Calles needs to acquire discipline and direction. Defense counsel urged the district

judge to reduce Calles’s sentence by fifty percent or more.

      In rebuttal, the government argued that Calles was a danger and that a long

sentence was necessary to protect the public. Contrary to defense counsel’s

argument, the government argued that Calles was violent demonstrated by the facts

of his case, including Calles’s presence during the shooting in the apartment

parking lot and his participation in the victim’s rape. The government further

argued that Calles’s violent nature was illustrated when the victim was taken

forcibly from her apartment, and Calles told her that she would not see her children



                                           5
again. The government noted that, but for Calles’s pleading guilty the morning of

his trial, his applicable Sentencing Guidelines offense level would be 42, which

corresponds to a Guidelines range of 360 months of imprisonment to life.

      At the sentencing hearing, the victim, Esfandiari, spoke on behalf of Calles.

She gave the district judge a lengthy description of Calles’s family history and

problems. Specifically, she explained that Calles lived in poverty and that he had

experienced an unhappy family life. She characterized Calles as “a victim of

circumstances that are out of his control.” R5 at 31. In concluding her statement,

the victim asked the judge for leniency in sentencing Calles.

      At the sentencing hearing, the district judge considered Calles’s arguments

and the victim’s statement on behalf of Calles. Before imposing the sentence, the

judge stated, “I’ve considered the statements of all of the parties, including the

victim, I’ve reviewed the presentence report which contains the advisory

guidelines and the statutory factors.” Id. at 32. The judge granted the

government’s motion for downward departure and sentenced Calles to a term of

240 months in prison on Count 1 and a term of 120 months in prison on Count 2,

to be served concurrently. After Calles was sentenced, his counsel objected to his

sentence as being unreasonable under United States v. Booker, 543 U.S. 220, 125

S. Ct. 738 (2005).



                                           6
                                      II. DISCUSSION

       On appeal, Calles argues that his 240-month sentence, which is below the

Sentencing Guidelines range of 292 to 365 months, is nevertheless unreasonable1

“because it fails to promote the goal of rehabilitation, fails to consider the history

and characteristics of the defendant and fails to adequately take into account the

level of his assistance and cooperation.” Appellant’s Br. at 7. He further contends

that his sentence is unnecessarily harsh, particularly in view of the fact that he was

eighteen years old at the time of sentencing, and he has not been incarcerated

previously.

       “‘In reviewing the ultimate sentence imposed by the district court for

reasonableness, we consider the final sentence, in its entirety, in light of the [18

U.S.C.] § 3553(a) factors.’” United States v. Valnor, 451 F.3d 744, 748 (11th Cir.

2006) (citation omitted). The § 3553(a) factors include:

       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant; (2) the need for the sentence
       imposed— (A) to reflect the seriousness of the offense, to promote
       respect for the law, and to provide just punishment for the offense; (B)
       to afford adequate deterrence to criminal conduct; (C) to protect the
       public from further crimes of the defendant; and (D) to provide the


       1
         Calles challenges the reasonableness of the sentence, which is cognizable on appeal
under 18 U.S.C. § 3742(a)(1). United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006)
(per curiam) (determining “that a post-Booker appeal based on the ‘unreasonableness’ of a
sentence, whether within or outside the advisory guidelines range, is an appeal asserting that the
sentence was imposed in violation of law pursuant to § 3742(a)(1)”).

                                                 7
      defendant with needed educational or vocational training, medical
      care, or other correctional treatment in the most effective manner; (3)
      the kinds of sentences available; (4) the kinds of sentence and the
      [S]entencing [Guidelines] range . . .; (5) any pertinent policy
      statement— (A) issued by the Sentencing Commission . . .; (6) the
      need to avoid unwarranted sentencing disparities among defendants
      with similar records who have been found guilty of similar conduct;
      and (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a)(1)-(7).

      A district judge does not need to state on the record that each factor has been

considered and does not need to discuss each factor. United States v. Dorman, 488

F.3d 936, 944 (11th Cir. 2007). In determining if a district judge adequately has

considered the defendant’s arguments and the § 3553(a) factors, we look at the

judge’s statements during the entire sentencing hearing. United States v. Williams,

435 F.3d 1350, 1355 (11th Cir. 2006) (per curiam). Additionally, we have

compared the sentence actually imposed to the statutory maximum in the

reasonableness review process. United States v. Winingear, 422 F.3d 1241, 1246

(11th Cir. 2005) (per curiam). The burden of proving that the sentence is

unreasonable under the record and the § 3553(a) factors rests on the challenger.

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam).

      We do not presume reasonable a sentence within the properly calculated

Sentencing Guidelines range. United States v. Hunt, 459 F.3d 1180, 1185 (11th

Cir. 2006). The Supreme Court, however, has upheld other circuit decisions

                                          8
affording such a presumption and recognized that a sentence, independently

calculated by a district judge in accordance with Booker that falls within the

properly calculated Guidelines range “significantly increases the likelihood that the

sentence is a reasonable one.” Rita v. United States, ___ U.S. ___, ___, 127 S. Ct.

2456, 2463 (2007).

      Before imposing Calles’s sentence, the district judge acknowledged that he

had considered Calles’s arguments, the government’s arguments, the victim’s

statement on behalf of Calles, and the PSI. Aside from these considerations, the

district judge also heard Calles apologize for his actions. The judge additionally

was aware of Calles’s personal history, including substance abuse and disciplinary

problems in school, which preceded the two episodes of violent behavior at issue

in this case: (1) participating in the attempted murder of the black male in the

apartment parking lot, and (2) assisting in the rape of the victim, all of which relate

to § 3553(a) factors. Our review of reasonableness consists of considering the §

3553(a) factors, which includes Calles’s need for rehabilitation and his personal

circumstances that he argues were not assessed, as well as the district judge’s

reasons for the sentence imposed. Williams, 435 F.3d at 1355. Significantly,

Calles’s 240-month sentence was below the Guidelines range of 292-365 months

of imprisonment and well below the life imprisonment, statutory maximum of §



                                           9
1201(a). Based on this record, Calles has not met his burden of establishing the

unreasonableness of his sentence. Because the district judge considered all of

Calles’s arguments and considered the factors outlined by § 3553(a), we conclude

that the sentence he imposed is reasonable.

                                III. CONCLUSION

      On appeal, Calles contends that his 240-month sentence for kidnaping and

interstate transportation of a stolen vehicle is unreasonable. As we have explained,

Calles has failed to establish the unreasonableness of his sentence, because the

district judge gave him a sentence below the Sentencing Guidelines range and the

statutory sentence of life imprisonment, as well as considered all of the § 3553(a)

factors. Accordingly, Calles’s sentence is AFFIRMED.




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