                                                                 [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 11-12227          NOVEMBER 2, 2011
                                        Non-Argument Calendar         JOHN LEY
                                                                        CLERK
                                      ________________________

                           D.C. Docket No. 1:10-cr-00458-CAP-ECS-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                          Plaintiff - Appellee,

    versus

SAMUEL SALINAS-CUELLAR,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.

                                     ________________________

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

                                           (November 2, 2011)

Before CARNES, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Samuel Salinas-Cuellar appeals his 45-month prison sentence on his

conviction for being found in the United States illegally after he had been
deported. He contends that his sentence was procedurally and substantively

unreasonable.

                                           I.

      In 1998 Salinas-Cuellar, acting with another perpetrator, restrained a 13-year-

old girl using a knife and forcibly raped her. Salinas-Cuellar pleaded guilty to

second-degree rape in New York state court and served 27 months in prison. He was

then deported to El Salvador on July 7, 2000.

      Salinas-Cuellar returned to the United States in 2009 and was arrested in

Gwinnett County, Georgia, on August 18, 2010, for driving without a license, giving

false information to law enforcement, and driving without a tag light. He pleaded

guilty in Georgia state court to driving without a license and giving false information

to law enforcement and was sentenced to 12 months probation with credit for time

served.

      Based on that Gwinnett County arrest, a federal grand jury indicted Salinas-

Cuellar for being found in the United States illegally after he had been deported in

violation of 8 U.S.C. §§ 1326(a), (b)(2). He pleaded guilty and was convicted. The

presentence investigation report set his base offense level at 8. It recommended a 16-

level increase because he had been deported after his felony rape conviction and a 3-

level reduction for acceptance of responsibility, yielding a total offense level of 21.

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The PSR calculated 3 criminal history points for his rape conviction and 1 criminal

history point for his convictions for driving without a license and giving false

information to law enforcement, placing him in criminal history category III.

Accordingly, the recommended range under the guidelines was 46–57 months

imprisonment. The maximum statutory prison term was 20 years. 8 U.S.C. §

1326(b)(2). The district court adopted the PSR’s guidelines calculations.

      At his sentence hearing Salinas-Cuellar requested a below-guidelines sentence.

He made four arguments: that he had returned to the United States to escape gang

members who had killed his brother in El Salvador; that his rape conviction was over

10 years old; that his Georgia convictions were not serious; and that other than his

recent Georgia convictions and his commission of the crime of being found in the

United States illegally, he had not committed any other criminal conduct since the

rape. The government responded that a within-guidelines sentence was appropriate

because of his pattern of disobeying the law.

      The district court sentenced Salinas-Cuellar to 45 months imprisonment after

crediting the 1 month he had served in state custody following his Gwinnett County

arrest. The court explained the sentence:

      [W]hen I went through this[,] I was inclined to agree with [the
      defendant] to a certain extent. The problem in my mind is the serious
      offense back ten years ago. I realize it’s a little over ten years ago, but

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      it’s a rape conviction and the report indicates the defendant used a knife
      to restrain the victim. . . . The Court’s reviewed the various factors in
      the code and believes [the sentence] achieves the factors set out in 18
      [U.S.C. §] 3553.
                                          II.

      Salinas-Cuellar argues the district court procedurally erred because it imposed

the 45-month sentence based exclusively on his criminal history instead of on a

consideration of all § 3553(a) factors. He further argues that his sentence was

substantively unreasonable because the district court improperly balanced the §

3553(a) factors by placing undue weight on his criminal history.

      We review a sentence for reasonableness, applying an abuse of discretion

standard. United States v. Irey, 612 F.3d 1160, 1189–90 (11th Cir. 2010) (en banc).

First, we review to ensure that the district court committed no significant procedural

error, such as failing to consider the 18 U.S.C. § 3553(a) factors. United States v.

Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). If the district court committed no

significant procedural error, we then determine whether the sentence is substantively

reasonable. United States v. Gonzalez, 550 F.3d 1319, 1323–24 (11th Cir. 2008).

      Our substantive reasonableness review is guided by the factors in 18 U.S.C. §

3553(a). United States v. Pugh, 515 F.3d 1179, 1188–89 (11th Cir. 2008). The

district court is required to impose a sentence that is “sufficient, but not greater than

necessary, to comply with the purposes” listed in § 3553(a). 18 U.S.C. § 3553(a).

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That includes the need to reflect the seriousness of the offense, promote respect for

the law, provide just punishment of the offense, deter criminal conduct, protect the

public from the defendant’s future criminal conduct, and provide the defendant with

needed educational or vocational training or medical care. Id. § 3553(a)(2). Among

other factors, the district court must also consider the nature and circumstances of the

offense, the history and characteristics of the defendant, the applicable guidelines

range, and the need to avoid unwarranted sentencing disparities. See id. § 3553(a)(1),

(4), (6). We ordinarily “expect a sentence within the Guidelines range to be

reasonable,” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005), and the

burden of establishing that a sentence is unreasonable lies with the party challenging

it.   Pugh, 515 F.3d at 1189.         We will vacate a sentence for substantive

unreasonableness “if, but only if, we are left with the definite and firm conviction that

the district court committed a clear error of judgment in weighing the § 3553(a)

factors by arriving at a sentence that lies outside the range of reasonable sentences

dictated by the facts of the case.” Irey, 612 F.3d at 1190 (quotation marks omitted).

       The district court did not commit procedural error in imposing Salinas-

Cuellar’s 45-month prison sentence. The record establishes that the court properly

considered the § 3553(a) factors. It explicitly said that it had reviewed those factors

and believed that the sentence achieved the purposes listed in § 3553(a). The court

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also said that it was inclined to agree with Salinas-Cuellar’s arguments “to a certain

extent” but that his rape conviction outweighed those arguments, showing that the

court had considered Salinas-Cuellar’s arguments for a below-guidelines sentence.

See United States v. Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir. 2010).

      Nor has Salinas-Cuellar demonstrated that his 45-month prison sentence is

substantively unreasonable. That sentence, after including the 1-month credit for

time served in state custody, was at the bottom of the recommended guidelines range

and well below the maximum statutory prison term of 20 years. See Gonzalez, 550

F.3d at 1324 (holding that a defendant’s sentence was reasonable in part because it

was well below the statutory maximum). The record establishes that the sentence

takes into account not only the seriousness of Salinas-Cuellar’s rape conviction but

also all § 3553(a) factors, including Salinas-Cuellar’s arguments for a below-

guidelines sentence. The court’s finding that the seriousness of the rape conviction

outweighed the other § 3553(a) factors does not render the sentence substantively

unreasonable.

      AFFIRMED.




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