                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10340                ELEVENTH CIRCUIT
                                   Non-Argument Calendar             OCTOBER 19, 2010
                                 ________________________               JOHN LEY
                                                                         CLERK
                         D.C. Docket No. 8:09-cr-00388-SDM-MAP-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

ISMAEL MONTIEL-HERNANDEZ,
a.k.a. Rudy Hernandez-Solis,
a.k.a. Raul Hernandez-Lopez,

lllllllllllllllllllll                                          Defendant-Appellant.

                                ________________________

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

                                      (October 19, 2010)

Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

         Appellant Montiel-Hernandez appeals his sentence to two counts of
transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (B)(i), and

one count of illegal reentry after being deported, in violation of 8 U.S.C. §

1326(a).

      On appeal, Montiel-Hernandez asserts that district courts in the Eleventh

Circuit generally, and the Middle District of Florida specifically, impose above-

guidelines sentences in immigration cases more frequently than district courts in

other circuits that adjudicate more immigration cases. Based on his comparisons,

he asserts that an immigration offender is “substantially more likely to receive an

upward variance if he is apprehended in the Tampa Division of the Middle District

of Florida than if he is found” in any other compared district. Montiel-Hernandez

concludes his statistical analysis by submitting that the high percentage of above-

guidelines sentences imposed by the Middle District of Florida renders the court’s

upward variance in his case an abuse of discretion.

      We review the reasonableness of a district court’s 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).

      When considering the difference between a particular sentence and

sentences imposed for similar crimes, we are not persuaded by bare numbers

without context. United States v. Campbell, 491 F.3d 1306, 1317 (11th Cir.

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2007). In Campbell, we considered a challenge by the former mayor of Atlanta to

his sentences for tax fraud. Id. at 1308-09. Rejecting Campbell’s argument that

“statistics . . . indicate that Campbell’s sentences greatly exceed the average

sentences imposed upon those convicted of tax crimes,” we explained that “the

statistics Campbell cites are bare numbers without context and, therefore, do not

persuade us that his sentences are unreasonable.” Id. at 1317.

      As in Campbell, Montiel-Hernandez has submitted bare numbers without

context, and thus has not shown that any statistical disparity between the district

courts of the Eleventh Circuit and any other circuit is unwarranted. Accordingly,

we refuse to rely on the bare statistics cited by Montiel-Hernandez, and conclude

that the statistics do not show that his sentence was unreasonable.

      Montiel-Hernandez next argues that his sentence was procedurally and

substantively unreasonable. He maintains that his sentence was procedurally

unreasonable because the guidelines range for transporting 25-99 illegal aliens

reflected his previous transportation of illegal aliens, thus requiring the district

court to explain why his already accounted-for recidivism warranted an upward

variance. Substantively, Montiel-Hernandez argues that his 36-month sentence is

unreasonable because the district court placed too much weight on the nature and

circumstances of his offense by focusing almost exclusively on his transporting

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illegal aliens on three occasions instead of focusing on his mitigating

circumstances. Montiel-Hernandez also reiterates his claim that the guidelines

range adequately reflected his recidivism, and contends that the district court’s

sentence was arbitrary in light of the Middle District of Florida’s statistical

disparities in sentencing.

      When reviewing the reasonableness of a sentence, we will first ensure “that

the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.”

Gall, 552 U.S. at 51, 128 S. Ct. at 597. The district court’s justification for a

variance from the guidelines range “must be compelling enough to support the

degree of the variance and complete enough to allow meaningful appellate

review.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009), cert.

denied, 129 S. Ct. 2847 (2009) (internal quotation marks omitted). The Supreme

Court has rejected the idea that a sentence outside of the guidelines range must

have an extraordinary justification. See id. (citing Gall, 552 U.S. at 47, 128 S. Ct.

at 595).

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      After reviewing the sentence for procedural reasonableness, we must

consider whether the sentence imposed is substantively reasonable in light of the

totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128

S. Ct. at 597. These factors include, among other things: (1) the nature and

circumstances of the offense; (2) the history and characteristics of the defendant;

(3) the need for a sentence to reflect the seriousness of the offense, promote

respect for the law, and provide just punishment for the offense; (4) the need to

deter criminal conduct; (5) the need to protect the public from further crimes

committed by the defendant; and (6) the advisory guideline range. See 18 U.S.C.

§ 3553(a). Another relevant factor is the relationship between the defendant’s

sentence and the applicable statutory maximum. See United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008) (noting, as one indication of reasonableness,

that a defendant’s sentence was “well below” the applicable statutory maximum),

cert. denied, 129 S. Ct. 2848 (2009).

      We have “recognize[d] that there is a range of reasonable sentences from

which the district court may choose.” United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). “We will defer to the district court’s judgment regarding the

weight given to the § 3553(a) factors unless the district court has made a clear

error of judgment.” Gonzalez, 550 F.3d at 1324. For instance, “a district court’s

                                          5
unjustified reliance upon any one § 3553(a) factor [may be] a symptom of an

unreasonable sentence.” United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.

2006) (internal quotation marks omitted).

       In determining a reasonable sentence, the district court may consider facts

that have already been taken into account in calculating the defendant’s guideline

range. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence”); United States v. Williams, 526

F.3d 1312, 1323-24 (11th Cir. 2008) (concluding that a district court could

consider defendant’s prior offenses in deciding to impose an upward variance,

even though those offenses were already included in the defendant’s criminal

history score). We have previously affirmed upward variances that were based in

part on the defendant’s prior criminal history. See Shaw, 560 F.3d at 1238-41

(affirming 83-month upward variance in a case where the defendant had 26 prior

arrests).

       In this case, we conclude from the record that the district court’s sentence

was procedurally reasonable. The court correctly calculated Montiel-Hernandez’s

guidelines range, treated the guidelines as advisory, based the sentence on

                                          6
undisputed facts, addressed the § 3553(a) factors, and explained the reasons why it

was imposing an upward variance. The district court’s reasons for its variance

were also thoroughly explained and were “compelling enough to support the

degree of the variance and complete enough to allow meaningful appellate

review.” Shaw, 560 F.3d at 1238 (internal quotation marks omitted).

      We also conclude from the record that Montiel-Hernandez’s sentence was

also substantively reasonable in light of the circumstances and § 3553(a) factors.

The district court exercised sound discretion and did not commit a clear error of

judgment when it imposed a sentence reflecting Montiel-Hernandez’s recidivism

and the need for deterrence. Gonzalez, 550 F.3d at 1324.

      Finally, we conclude that any statistical sentencing disparities between the

Middle District of Florida and other district courts does not prove that Montiel-

Hernandez’s sentence was unreasonable for the same reasons as discussed above.

      Therefore, we conclude that Montiel-Hernandez’s sentence was

procedurally and substantively reasonable, and we affirm his 36-month total

sentence.

      AFFIRMED.




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