                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-13516                ELEVENTH CIRCUIT
                                                            JANUARY 12, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                             ACTING CLERK

                    D. C. Docket No. 08-10060-CR-KMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

OSMANY AGUILA-MADALAY,

                                                          Defendant-Appellant.


                        ________________________

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

                             (January 12, 2010)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

     After pleading guilty, Osmany Aguila-Madalay (“Aguila-Madalay”) appeals
his 60-month sentence for conspiracy to encourage or induce aliens to come to the

United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). After review, we

affirm.

                                I. BACKGROUND

      According to the presentence investigation report (“PSI”), after midnight on

July 28, 2007, a United States Coast Guard (“USCG”) cutter found a vessel dead in

the water. As the cutter approached, the vessel fled, beginning a high-speed

pursuit that lasted several hours and involved at least two USCG vessels. The

fleeing vessel ignored the USCG’s hails, blue lights and warning shots and

engaged in evasive maneuvers. During the chase, the vessel attempted to ram the

USCG cutter and the vessel’s passengers threw objects at the cutter.

      The USCG disabled and boarded the vessel and found thirty-nine Cuban

nationals on board, along with Rubi Perez and Defendant Aguila-Madalay. Perez

operated the vessel during the chase, with Aguila-Madalay standing beside him at

the console. Although there were over forty people on board the vessel, only

seventeen personal floatation devices were found. Aguila-Madalay did not object

to these facts in the PSI.

      The PSI recommended: (1) a base offense level of 12, pursuant to U.S.S.G.

§ 2L1.1(a)(3); (2) a six-level increase, pursuant to § 2L1.1(b)(2)(B), because the



                                          2
offense involved smuggling between 25 and 99 aliens; (3) a two-level increase,

pursuant to § 2L1.1(b)(6), for intentionally or recklessly creating a substantial risk

of death or serious bodily injury to another person based on the insufficient number

of floatation devices; and (4) two-level increase, pursuant to § 3C1.2, for recklessly

creating a substantial risk of death or serious bodily injury to another person in the

course of fleeing from a law enforcement officer.

      The PSI gave Aguila-Madalay one criminal history point for a prior

conviction for driving under the influence (“DUI”) and two criminal history points

for committing the instant federal offense while on probation. With a criminal

history category of II and a total offense level of 22, the PSI recommended an

advisory guidelines range of 46 to 57 months’ imprisonment. The PSI noted that

the statutory maximum for Aguila-Madalay’s offense was ten years. See 8 U.S.C.

§ 1324(a)(1)(B)(i).

      Aguila-Madalay objected to the two-level increase for reckless

endangerment during the vessel’s flight, arguing that he was not the vessel’s

operator. At the sentencing hearing, Aguila-Madalay testified that he did not

operate the boat during the chase and told Perez to stop more than once, but Perez

refused. Based on this testimony, the district court sustained Aguila-Madalay’s

objection. Aguila-Madalay also objected to not receiving a three-level reduction



                                           3
for acceptance of responsibility. The district court overruled this objection because

Aguila-Madalay tested positive for a controlled substance while out on bond.

      The district court found that Aguila-Madalay’s total offense level was 20,

which, with a criminal history category of II, yielded an advisory guidelines range

of 37 to 46 months’ imprisonment. Aguila-Madalay expressed regret for

committing his offense and stated that he would not repeat it. Aguila-Madalay

argued in mitigation that since coming to the United States in 1995, he had

remained gainfully employed as a handyman and, with the exception of his DUI

conviction, had been a good member of society. Aguila-Madalay requested a

sentence at the low end of the range.

      The district court, however, imposed a 60-month sentence, 14 months above

the high end of the advisory range. The court noted that in a recent, similar alien-

smuggling case the defendants had received 60-month sentences, although that

case did not involve a high-speed chase or objects being thrown from the vessel.

The district court stated that, in considering the § 3553(a) factors, “including the

nature and circumstances of the offense which we have discussed, the high speed

chase, the history and characteristics of the defendant, that he committed this while

he was on probation from serving another offense,” a sentence within the advisory

guidelines range was “inadequate to afford adequate deterrence to criminal



                                           4
conduct, to protect the public from further crimes of the defendant, and to reflect

the seriousness of the offense, to promote respect for the law, to provide just

punishment for the offense.” Aguila-Madalay filed this appeal, arguing that his

60-month sentence is substantively unreasonable.

                                       II. DISCUSSION

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

two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

We look first at whether the district court committed any significant procedural

error and then at whether the sentence is substantively reasonable under the totality

of the circumstances. Id. The party challenging the sentence bears the burden to

show it is unreasonable in light of the record and the § 3553(a) factors. United

States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).1

       “If, after correctly calculating the guidelines range, a district court decides

that a sentence outside that range is appropriate, it must ‘consider the extent of the

deviation and ensure that the justification is sufficiently compelling to support the



       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 unwanted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).

                                                  5
degree of the variance.’” United States v. Williams, 526 F.3d 1312, 1322 (11th

Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586, 597

(2007)). Likewise, although “[s]entences outside the guidelines are not presumed

to be unreasonable, . . . we may take the extent of any variance into our calculus.”

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied, 129 S. Ct.

2847 (2009). However, we “must give due deference to the district court’s

decision that the § 3553(a) factors, on the whole, justify the extent of the variance.”

Gall, 552 U.S. at 51, 128 S. Ct. at 597.

       Here, Aguila-Madalay has not met his burden to show his 60-month

sentence was substantively unreasonable.2 Aguila-Madalay was involved with a

scheme to smuggle thirty-nine aliens into the United States on a vessel that was not

equipped with enough floatation devices for all its passengers. When discovered,

the vessel engaged in a dangerous, high-speed chase and the passengers threw

objects at the USCG. The USCG had to deploy disabling devices to stop the

vessel. Aguila-Madalay committed this high-risk offense while on probation for a

prior conviction. Under the totality of the circumstances, we cannot say the district

court’s decision to impose an 14-month upward variance was an abuse of

discretion.


       2
         Aguila-Madalay does not challenge the district court’s guidelines calculations or argue
that the sentence was procedurally unreasonable.

                                                6
      Contrary to Aguila-Madalay’s assertion, Aguila-Madalay’s prior conviction

was not the sole basis for the upward variance. The district court specifically

referenced the dangerous circumstances of the offense and the fact that a sentence

within the advisory guidelines range would not reflect its seriousness or provide

adequate deterrence or protection to the public. Furthermore, the fact that the

district court relied in part on Aguila-Madalay’s prior conviction and his

probationary status does not make the upward variance unreasonable. See United

States v. Amedeo, 487 F.3d 823, 833-34 (11th Cir. 2007) (finding it reasonable for

district court to impose upward variance based on factors already considered in

imposing a guidelines enhancement).

      AFFIRMED.




                                          7
