           Case: 12-13029   Date Filed: 02/08/2013   Page: 1 of 5

                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-13029
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cr-00003-AT-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus


VALERIANO CRUZ-MENDOZA,
a.k.a. Valeriano Cruz,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 8, 2013)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Valeriano Cruz-Mendoza appeals his below-guidelines 32-month sentence,

which the district court imposed after he pled guilty to illegally reentering the

United States after removal. Cruz-Mendoza argues that his sentence was

substantively unreasonable. He argues that there is no empirical evidence to

support the severe 16-level guideline enhancement under § 2L1.2(b)(1)(A)(ii), for

illegal reentry following a felony conviction. In addition, he asserts that the fact

that prior convictions drive up both the offense level and the criminal history score

under the guidelines constitutes impermissible double counting. Finally, Cruz-

Mendoza argues that the court gave insufficient weight to the facts and

circumstances of his case, and abused its discretion by failing to fashion a more

lenient sentence.

      We review the reasonableness of a defendant’s sentence under a deferential

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

591, 169 L.Ed.2d 445 (2007), and the party challenging the sentence bears the

burden of demonstrating that it is unreasonable, United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). The district court must impose a sentence that is

sufficient, but not greater than necessary, to comply with the purposes of

sentencing listed in § 3553(a)(2), including the need to reflect the seriousness of

the offense, promote respect for the law, provide just punishment, deter criminal

conduct, protect the public, and provide needed educational or vocational training,


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or medical care. 18 U.S.C. § 3553(a)(2). The district court must also consider the

nature and circumstances of the offense, the defendant’s history and

characteristics, the kinds of sentences available, the applicable Guidelines range,

pertinent policy statements from the Sentencing Commission, the need to avoid

unwarranted sentencing disparities, and the need for restitution. Id. § 3553(a)(1),

(3)-(7).

       Considering these standards, we affirm. Cruz-Mendoza’s arguments sound

solely in substantive reasonableness. He does not argue that the district court

failed to properly calculate his Guidelines range, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, imposed his sentence based

upon clearly erroneous facts, or failed to adequately explain his sentence. Rather,

he argues that, in light of the 16 offense-level-enhancement and a variety of

mitigating factors, his sentence exceeds that which is necessary to achieve the

appropriate sentencing objectives.

       Cruz-Mendoza’s argument regarding the lack of empirical evidence

supporting the 16 offense-level-enhancement under § 2L1.2(b)(1)(A)(ii) is raised

for the first time on appeal and we find no error, plain or otherwise. Even if Cruz-

Mendoza is correct that the enhancement is not supported by an empirical basis,

this fact alone would not invalidate its application or otherwise render his sentence

unreasonable. See United States v. Snipes, 611 F.3d 855, 870 (11th Cir. 2010)


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(addressing U.S.S.G. § 2T1.1, and holding that the absence of empirical evidence

is not an independent ground that requires the wholesale invalidation of a

guideline). Rather, the district court was permitted, but not required, to consider

any lack of empirical evidence as a relevant factor when imposing Cruz-

Mendoza’s sentence. See Snipes, 611 F.3d at 870. Thus, the district court did not

err in applying the § 2L1.2(b)(1)(A)(ii) enhancement.

      Nor did the district court’s application of the 16 offense-level-enhancement

impermissibly double count Cruz-Mendoza’s criminal history. See United States

v. Adeleke, 968 F.2d 1159, 1160-61 (11th Cir. 1992). Double counting is permitted

if the Sentencing Commission intended that result and the two guidelines sections

serve different purposes. Id. at 1161. Here, criminal history categories punish

recidivists, and § 2L1.2(b)(1)(A) deters aliens from reentering the country after

committing felonies. Id. Thus, double counting was permitted in this case.

      Finally, we must reject Cruz-Mendoza’s argument that that his sentence is

substantively unreasonable. As the district court found, Cruz-Mendoza’s criminal

history involved a violent criminal act, he was a recidivist, and he was on “very

clear notice” of the penalties he might face for returning to this country. The court

reasonably found that a 32-month sentence would sufficiently address

demonstrated needs for deterrence and respect for the law. See 18 U.S.C.

§ 3553(a)(1), (2)(A)-(B); (R1-32 at 24-25). Moreover, the 32-month sentence fell


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below the bottom of Cruz-Mendoza’s Guidelines range and appreciably below the

20-year statutory maximum, further suggesting its substantive reasonableness. See

8 U.S.C. § 1326(b)(2) (establishing a 20-year maximum sentence of imprisonment

for an alien that illegally reenters the United States after having been removed

subsequent to a conviction for an aggravated felony). Cruz-Mendoza’s 32-month

sentence fell within the range of reasonable sentences that the district court could

have imposed and we cannot say the court’s conclusion that Cruz-Mendoza’s

sentence was “sufficient,” but “not greater than necessary to penalize for the

offense involved here” was erroneous.

      AFFIRMED.




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