                                                                  [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                       FILED
                                                                U.S. COURT OF APPEALS
                                  No. 10-13550                    ELEVENTH CIRCUIT
                              Non-Argument Calendar                  MARCH 16, 2011
                            ________________________                   JOHN LEY
                                                                        CLERK
                    D.C. Docket No. 6:09-cr-00259-ACC-GJK-1

UNITED STATES OF AMERICA,

                                                     lllllllllllllllllllllPlaintiff-Appellee,

                                        versus

JAIRO MODESTO MIRANDA-GARCIA,

                                                 lllllllllllllllllllllDefendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (March 16, 2011)

Before HULL, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Jairo Modesto Miranda-Garcia appeals his 70-month sentence, imposed at the

bottom of the applicable guideline range, after pleading guilty to one count of reentry
of a deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). Miranda-Garcia

argues that his sentence: (1) is procedurally unreasonable because the district court

failed to adequately explain its reasoning, and (2) is procedurally and substantively

unreasonable because the district court failed to adequately consider and then grant

a downward variance consistent with the pending amendment to § 2L1.2 effective on

November 1, 2010, allowing for a downward departure based on cultural assimilation.

After thorough review, we affirm.

      We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)).

      In reviewing sentences for reasonableness, we perform two steps. Id. at 1190.

First, we must “‘ensure that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain

the chosen sentence -- including an explanation for any deviation from the Guidelines




                                          2
range.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1 The district

court need not discuss each § 3553(a) factor. United States v. Talley, 431 F.3d 784,

786 (11th Cir. 2005). It is generally sufficient that the record, viewed as a whole,

reflects that the sentencing judge considered the parties’ arguments and has taken the

§ 3553(a) factors properly into account. See, e.g., United States v. Irey, 612 F.3d

1160, 1194-95 (11th Cir. 2010) (en banc), petition for cert. filed, (U.S. Nov. 24,

2010) (No. 10-727).

       If we conclude that the district court did not procedurally err, we must consider

the “‘substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 515 F.3d

at 1190 (quoting Gall, 552 U.S. at 51). This review is “deferential,” requiring us to

determine “whether the sentence imposed by the district court fails to achieve the

purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788. “The

weight to be accorded any given § 3553(a) factor is a matter committed to the sound

discretion of the district court, and we will not substitute our judgment in weighing

       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 for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
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).

                                                 3
the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007)

(quotation and brackets omitted). We will “vacate the sentence 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 omitted). “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. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010), cert. denied, 131 S.Ct.

674 (2010). “[O]rdinarily, we would expect a sentence within the Guidelines range

to be reasonable.” United States v. Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009),

cert. denied, 131 S.Ct. 436 (2010).

      In this case, Miranda-Garcia’s sentence was not unreasonable. As the record

shows, the district court heard and considered the arguments of both Miranda-Garcia

and the government, the letter from his father, and his own personal statement, along

with other relevant factors under 18 U.S.C. § 3553(a). The district court explained

its reasoning for the 70-month sentence, noting its concerns regarding the risk of

recidivism, based on Miranda-Garcia’s history of repeated illegal reentry to the

United States and his own statement to the district court. Thus, the record reflects

that the sentencing court engaged in the necessary “individualized assessment based

                                            4
on the facts presented” and indicated its particular reasons for imposing a sentence

within the guideline range under § 3553(a). Gall, 552 U.S. at 50.

      Furthermore, Miranda-Garcia failed to demonstrate that the district court

committed a clear error of judgment by not granting a downward variance in light of

the pending amendment to U.S.S.G. § 2L1.2 for downward departures based on the

offender’s cultural assimilation. As acknowledged by Miranda-Garcia, the proposed

amendment was not yet adopted and in force, and any variance would be

discretionary for the district court. The district court heard and considered this

argument, but in determining the final sentence, noted the strong risk of recidivism

based on Miranda-Garcia’s personal history and statement. Miranda-Garcia has

provided no other argument that the district court committed a clear error of judgment

in considering the § 3553(a) factors. Miranda-Garcia received a sentence at the

bottom of the guideline range and well below the 20-year statutory maximum

sentence. His sentence is both procedurally and substantively reasonable.

      AFFIRMED.




                                          5
