                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-15446            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           JUNE 22, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                          D.C. Docket No. 1:09-cr-00436-WSD-LTW-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellee,

                                               versus

JORGE HERNANDEZ,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.

                                     ________________________

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

                                           (June 22, 2011)




Before TJOFLAT, CARNES and BLACK, Circuit Judges.

PER CURIAM:
      Jorge Hernandez appeals his 77-month sentence, imposed at the low end of

his Guidelines range, after pleading guilty to one count of reentry of a deported

alien, in violation of 8 U.S.C. § 1326(a), (b)(2). Hernandez brings two issues on

appeal, which we address in turn. After review, we affirm Hernandez’s sentence.

                                          I.

      Hernandez asserts the district court’s imposition of a 77-month term of

imprisonment was substantively unreasonable as the Guidelines range resulted

from redundant consideration of his criminal history and did not adequately take

into account the factors set forth in 18 U.S.C. § 3553(a). Within this argument, for

the first time on appeal, Hernandez contends his 16-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a previous crime of violence was unreasonable,

because it was not based on empirical data and penalizes a defendant twice for the

same prior conviction also included in the criminal history calculation.

      We review the reasonableness of a sentence, “[r]egardless of whether the

sentence imposed is inside or outside the Guidelines range,” under a deferential

abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 51

(2007). We reverse only if “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

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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) (quotations omitted).

      “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court.” United States v. Williams,

526 F.3d 1312, 1322 (11th Cir. 2008) (alteration omitted). A sentence may be

substantively unreasonable where a district court “unjustifiably relied on any one

§ 3553(a) factor, failed to consider pertinent § 3553(a) factors, selected the

sentence arbitrarily, or based the sentence on impermissible factors.” United

States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). The burden of

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

sentence. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008).

      Hernandez’s 77-month sentence, located at the low end of his advisory

guideline range, is substantively reasonable. The district court did not abuse its

discretion in considering Hernandez’s escalating criminal history in determining a

reasonable sentence, and the court also took into account the § 3553(a) factors,

including Hernandez’s history and characteristics, the nature of the offense, the

fact that Hernandez needed to be held accountable for his conduct, the need to

protect the community, and the possibility of Hernandez receiving training while

in prison. Particularly, the district court explicitly considered Hernandez’s

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arguments regarding his youth and assimilation into the culture of the United

States in determining Hernandez’s sentence.

      Hernandez failed to raise until this appeal his policy argument that the 16-

level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) was unreasonable, and

thus he has waived all but plain-error review. See United States v. Bennett, 472

F.3d 825, 831 (11th Cir. 2006) (explaining objections to a sentence raised for the

first time on appeal are reviewed for plain error). Hernandez cites no binding

precedent from the Supreme Court or this Court to support his argument, nor does

such precedent exist, and therefore the district court did not plainly err in

assigning the 16-level enhancement for Hernandez’s previous crime of violence.

See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (stating

there can be no plain error where neither the Supreme Court nor this Court has

directly resolved the issue).

                                          II.

      Although acknowledging this Court’s precedent is contrary to his argument,

Hernandez also contends the district court erred by assigning two criminal history

points for a juvenile conviction for obstruction, because the court improperly

applied U.S.S.G. § 4A1.2(k)(1) to determine that his probation revocation




                                           4
sentence of two years’ imprisonment prevented that offense from being exempt

from application of criminal history points under U.S.S.G. § 4A1.2(c)(1).

      We have held the district court should apply § 4A1.2(k)(1) when

determining whether an offense should be excluded pursuant to § 4A1.2(c)(1)(A).

United States v. Coast, 602 F.3d 1222, 1223-24 (11th Cir. 2010). Thus, the

district court did not err in applying U.S.S.G. § 4A1.2(k)(1) to determine

Hernandez should receive two criminal history points for his June 2004

adjudication, based upon his two-year sentence of imprisonment for a probation

revocation. Hernandez concedes Coast forecloses his argument and supports that

a district court should aggregate a defendant’s original sentence and probation

revocation sentence to determine whether a conviction is exempt from the

application of criminal history points pursuant to U.S.S.G. §§ 4A1.2(c)(1) and

4A1.2(k).

      AFFIRMED.




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