                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JULY 2, 2008
                             No. 08-10015
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                   D. C. Docket No. 07-10036-CR-KMM

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

JESUS MARTIN GARCIA,

                                                   Defendant-Appellant.


                       ________________________

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

                              (July 2, 2008)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Jesus Garcia appeals his sentence imposed after pleading guilty to

conspiracy to smuggle aliens resulting in serious bodily injury, 8 U.S.C.

§ 1324(a)(1)(A)(v)(I), and unlawful entry in Cuban territorial waters, 50 U.S.C.

§ 192. Garcia asserts the district court did not provide a sufficiently compelling

justification for its imposition of an upward variance of his sentence, from an

advisory Guidelines range of 37 to 46 months to a sentence of 60 months. Thus,

he argues, the sentence does not meet the purposes of 18 U.S.C. § 3553(a). After

review, we affirm Garcia’s sentence.

      “We review the sentence imposed by the district court for reasonableness.”

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). The Supreme Court

has clarified the reasonableness standard means review of sentences for abuse of

discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007).

      The district court must impose a sentence that is both procedurally and

substantively reasonable. Id. The Supreme Court has explained a sentence may

be procedurally unreasonable if the district court improperly calculates the

Guidelines imprisonment range, treats the Guidelines as mandatory, fails to

consider the appropriate statutory factors, bases the sentence on clearly erroneous

facts, or fails to adequately explain its reasoning. Id. “The sentencing judge

should set forth enough to satisfy the appellate court that he has considered the



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parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita v. United States, 127 S. Ct. 2456, 2468 (2007).

       Once we conclude the district court made no procedural errors, we then

consider the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard. Gall, 128 S. Ct. at 597. Such review entails

determining whether the sentence is supported by the § 3553(a) factors. Id. at 600.

Reasonableness review is "deferential," there is a "range of reasonable sentences

from which the district court may choose," and "the party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both [the] record and the factors in section 3553(a)." Talley, 431 F.3d at

788.

       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.

Id. at 786 (citing 18 U.S.C. § 3553(a)).

       If a district court decides a sentence outside that range is appropriate, it must

“consider the extent of the deviation and ensure that the justification is sufficiently

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compelling to support the degree of the variance.” Gall, 128 S. Ct. at 597.

Accordingly, the district court must “includ[e] an explanation for any deviation

from the Guidelines range.” Id. In determining whether a sentence is

substantively reasonable, we must consider the totality of the circumstances. Id. If

the sentence is outside the Guidelines range, we may consider the deviation, “but

must give due deference to the district court’s decision that the § 3553(a) factors,

on a whole, justify the extent of the variance.” Id. “The fact that the appellate

court might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Id. Nonetheless, the district

court does not have unfettered discretion in sentencing. United States v. Pugh, 515

F.3d 1179, 1191 (11th Cir. 2008).

      There is no requirement the district court state on the record that it has

explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Instead, indications in the record that the district court considered facts and

circumstances falling within § 3553(a)’s factors will suffice. Id. at 1329-30. A

district court’s unjustified reliance on a single § 3553(a) factor may be a symptom

of an unreasonable sentence, Pugh, 515 F.3d at 1191; however, such a sentence is

not necessarily unreasonable, see Gall, 128 S. Ct. at 600 (holding a district court



                                            4
did not commit reversible error simply because it “attached great weight” to one

factor). Indeed, “[t]he weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court.” United States v. Clay, 483

F.3d 739, 743 (11th Cir. 2007).

      The district court’s upward variance was reasonable. The court committed

no significant procedural error. The court stated it had considered the advisory

Guidelines and the statutory factors. The court allowed Garcia to present

arguments as to what he believed the appropriate sentence should be, and

considered Garcia’s arguments for a sentence within the Guidelines on the basis of

18 U.S.C. § 3553(a) factors. The district court, relying on the unobjected-to facts

from the PSI, explained why it had determined an above-Guidelines sentence was

appropriate in light of the § 3553(a) factors. On the day of sentencing there were

7 cases involving alien smuggling, of a total of 11 defendants, before the court.

The district court noted the need to promote respect for the law and insure adequate

deterrence for others who might contemplate similar criminal conduct. See 18

U.S.C. § 3553(a)(2)(A), (B). The court further observed the need to consider the

nature and circumstances of the offense and the background of the defendant. 18

U.S.C. § 3553(a)(1). Contrary to Garcia’s claim to the contrary, these explanations

are sufficient to allow meaningful appellate review. See Rita, 127 S. Ct. 2468.



                                          5
      The district court considered the § 3553(a) factors and imposed a 60-month

sentence that was well below the statutory maximum. The statutory maximum

penalty for Counts 1 and 12 was 20 and 10 years' imprisonment respectively. 8

U.S.C. § 1324(a)(1)(B)(iii), 50 U.S.C. § 192. Garcia’s total sentence of 60

months' imprisonment is far less than the statutory maximum he could have

received for each of his offenses. This Court has found sentences significantly

lower than the statutory maximum to be reasonable. See United States v. Valnor,

451 F.3d 744, 751-52 (11th Cir. 2006) (relying on fact that 42-month sentence was

far below the statutory maximum as a sign of reasonableness).

      Garcia has not established his sentence was substantively unreasonable.

Much of Garcia’s appellate argument focuses on the reasonableness of his sentence

in light of the district court’s focus on the prevalence of alien smuggling offenses

on the calendar the day of his sentencing. Garcia asserts the district court varied

from the Guidelines range based on its own personal view of punishment. To

support his claim, Garcia cites Kimbrough v. United States, 128 S. Ct. 558, 575

(2007), which states “while the Guidelines are no longer binding, closer review

may be in order when the sentencing judge varies from the Guidelines based solely

on the judge’s view that the Guidelines range fails properly to reflect § 3553(a)

considerations even in a mine-run case.” Kimbrough is distinguishable on its facts



                                           6
from Garcia. In Kimbrough, the district court sentenced below the sentencing

Guidelines range based on explicit disagreement with the sentencing Guidelines.

Id. at 565. Here, the district court did not explicitly disagree with the Guidelines.

The district court’s focus was on respect for the law and deterrence, both factors

under § 3553 (a). The Supreme Court recognized that some departures from

sentencing uniformity were a necessary cost of applying § 3553(a) considerations.

See United States v. Booker, 125 S. Ct. 738, 766-67 (2005) (reasonableness review

may not lead to uniformity Congress intended). While the district court did not

expressly discuss each of the § 3553(a) factors, it was not required to do so. Scott,

426 F.3d at 1329. The district court did not clearly err by emphasizing two factors,

respect for the law and deterrence, because "[t]he weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district court.”

Clay, 483 F.3d at 743. Although Garcia’s sentence amounted to an upward

variance, the district court correctly calculated the advisory Guidelines range,

considered the relevant § 3553(a) factors, articulated its reasons in open court,

considered Garcia's arguments, and had a reasoned basis for its decision. See Gall,

128 S. Ct. at 597; Rita, 127 S. Ct. at 2468.

      Finally, Garcia implies the district court’s decision to impose an upward

variance gives rise to the inference its determination was influenced by its personal



                                           7
views regarding illegal immigration. There is nothing in the record to support

Garcia’s contention.

       The district court considered the § 3553(a) factors and imposed a sentence

above the advisory Guidelines range. Because the § 3553(a) factors support the

sentence imposed by the district court, the sentence is not greater than necessary to

achieve the goals of sentencing set forth in § 3553(a). Further, the sentence is far

below the statutory maximum for each of the crimes of conviction. Therefore, the

district court did not abuse its discretion in sentencing Garcia to 60 months’

imprisonment. Accordingly, we affirm Garcia’s sentence.

      AFFIRMED.




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