                    Case: 12-11923          Date Filed: 11/21/2012   Page: 1 of 5

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11923
                                        Non-Argument Calendar
                                      ________________________

                          D.C. Docket No. 4:11-cr-00043-HLM-WEJ-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                  versus

LUIS HERNANDEZ-NAVA,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                           (November 21, 2012)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 12-11923     Date Filed: 11/21/2012    Page: 2 of 5

      Luis Hernandez-Nava pled guilty to reentry of a deported alien, in violation

of 8 U.S.C. §§ 1326(a), (b)(2), and was sentenced to a prison term of 24 months.

He appeals his sentence, which was at the low end of the Guidelines sentence

range of 24-30 months, presenting one issue: whether the sentence is unreasonable

on the ground the District Court failed to account for the “overstatement” of his

criminal history in the presentence report. He represents that reliable information

indicated that his criminal history category of IV substantially over-represented

the seriousness of his actual criminal record. He contends that, because most of

his offenses were related to the fact that he was attempting to hide his illegal status

in the United States, a downward departure was justified. Further, he implicitly

argues that he was entitled to a downward variance because his sentence was

substantively unreasonable.

      We review the reasonableness of a 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.E.2d 445 (2007). The District Court was required to impose a

sentence “sufficient, but not greater than necessary to comply with the purposes”

listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the seriousness of

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

deter criminal conduct, and protect the public from the defendant’s future criminal

                                           2
              Case: 12-11923     Date Filed: 11/21/2012      Page: 3 of 5

conduct. See 18 U.S.C. § 3553(a)(2). In imposing Hernandez-Nava’s sentence,

the court had to also consider the nature and circumstances of the offense, the

history and characteristics of the defendant, the kinds of sentences available, the

applicable guideline range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwarranted sentencing disparities, and the need to

provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

      In reviewing the reasonableness of a sentence, we first ensure that the

sentence is procedurally reasonable. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Then,

we examine whether the sentence is substantively reasonable in light of the totality

of the circumstances. Id. A sentence imposed well below the statutory maximum

penalty is an indicator of a reasonable sentence. See United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). We reverse only if left with the 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. United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011).

      If reliable information indicates that a defendant’s criminal history category

substantially over-represents the seriousness of the defendant’s criminal history or

the likelihood that the defendant will commit other crimes, a downward departure

                                           3
              Case: 12-11923     Date Filed: 11/21/2012   Page: 4 of 5

may be warranted. U.S.S.G. § 4A1.3(b)(1). We discussed the procedure for

properly departing downward under that section in United States v. Smith, 289

F.3d 696, 708-09 (11th Cir. 2002), a case involving a cross-appeal by the

Government challenging the departure decision itself.

      Generally, however, a defendant may not appeal the court's refusal to depart

downward. United States v. Baker, 19 F.3d 605, 614-15 (11th Cir. 1994). A

defendant may appeal the court's failure to downward depart on the ground that

the court erroneously believed it lacked the authority to depart, but we will assume

that the court understood it had authority to depart downward where, as here, there

is no indication that it misapprehended its authority. See id. at 615 (erroneous

belief); United States v. Hansen, 262 F.3d 1217, 1255 (11th Cir. 2001)

(misapprehending authority).

      Hernandez-Nava’s 24-month sentence is reasonable in light of the record

and the § 3553(a) factors. The sentence was at the bottom of the applicable

guideline range; we ordinarily expect such a sentence to be reasonable. See

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Considering

Hernandez-Nava’s history and propensity for breaking the law and violating his

probation, the court reasonably found that the criminal history category of IV was

appropriate and not excessive in light of his criminal record. Having given

                                          4
              Case: 12-11923       Date Filed: 11/21/2012   Page: 5 of 5

considerable weight to Hernandez-Nava’s criminal history and repeated violations

of law, the court also did not give undue deference to the guideline range.

      Finally, while the court was authorized to downwardly depart from the

criminal history category of IV if it found the category substantially over-

represented the seriousness of Hernandez-Nava’s criminal history, the court here

found such a departure unwarranted. There was no indication that the court

misapprehended its authority to depart downward, only that it concluded

Hernandez-Nava’s criminal history did not merit such treatment under U.S.S.G.

§ 4A1.3(b)(1). This decision is not reviewable in light of the foregoing.

      Hernandez-Nava has not met his burden of showing that his sentence is

unreasonable. It is accordingly,

      AFFIRMED.




                                           5
