            Case: 12-12493   Date Filed: 03/20/2013   Page: 1 of 7

                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12493
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:11-cr-00139-MEF-SRW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MIGUEL MENDEZ-DOMINGO,
a.k.a. Christopher Lee Garcia,
a.k.a. Miguel Garcia,

                                                          Defendant-Appellant.

                       ________________________

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

                             (March 20, 2013)

Before HULL, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

     Miguel Mendez-Domingo appeals the procedural and substantive
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reasonableness of his 46-month sentence, imposed after he pleaded guilty to illegal

reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). He

received a 16-level enhancement at sentencing, pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), due to his 2004 Kansas state conviction for aggravated

indecent liberties with a child. On appeal, he argues, first, that the district court

committed procedural error by failing at sentencing to either discuss the 18 U.S.C.

§ 3553(a) factors, or to articulate on the record its reasons for rejecting his

argument challenging the inequity of the 16-level enhancement. Next, he contends

that his sentence is substantively unreasonable, as evidenced by the

disproportionate results of the enhancement and the disparity between his 46-

month sentence and a one-day sentence imposed later on the same day by the same

court on a comparator defendant for the same crime. After careful review, we

affirm Mendez-Domingo’s sentence.

      We generally review the reasonableness of a sentence under a deferential

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591, 169 L. Ed. 2d 445 (2007). Under the abuse of discretion standard, a

sentence will be affirmed unless we find “that the district court has made a clear

error of judgment, or has applied the wrong legal standard.” United States v.

Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). In other words, we “will

not second guess the weight (or lack thereof) that the [district court] accorded to a


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given factor . . . as long as the sentence ultimately imposed is reasonable in light of

all the circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th

Cir. 2010). The party challenging a sentence bears the burden of establishing that

it is unreasonable. Id. However, where a defendant fails to object to an alleged

sentencing error before the district court, we review only for plain error. See

United States v. Castro, 455 F.3d 1249, 1251 (11th Cir. 2006).

      In reviewing whether a sentence is reasonable, we must ensure, first, that the

district court did not commit a 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.”

Gall, 552 U.S. at 51, 123 S. Ct. at 597. At sentencing, the district court is required

to set forth the reasons for its sentence in sufficient detail so as to permit

“meaningful appellate review.” Id. at 50, 128 S. Ct. at 597. Although the court is

required to consider the § 3553(a) factors in making its sentencing decision, it need

not discuss each one in detail; “[r]ather, an acknowledgment by the district judge

that he or she has considered the § 3553(a) factors will suffice.” United States v.

Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). “[N]othing . . . requires the district

court to state on the record that it has explicitly considered each of the § 3553(a)

factors or to discuss each of the § 3553(a) factors.” Id. (quoting United States v.


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Thomas, 446 F.3d 1348, 1357 (11th Cir. 2006)). Ultimately, the court must show

“that [it] has considered the parties’ arguments and has a reasoned basis” for its

decision. United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008).

      Once we determine that a sentence is procedurally sound, we must next

examine whether the sentence was substantively reasonable in light of the record

and the § 3553(a) factors. United States v. Wayerski, 624 F.3d 1342, 1353 (11th

Cir. 2010). This includes the “need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). “Congress enacted the Sentencing Guidelines

in large part to eliminate disparities in the sentences meted out to similarly situated

defendants.” United States v. Chotas, 968 F.2d 1193, 1197 (11th Cir. 1992). “A

well-founded claim of disparity, however, assumes that apples are being compared

to apples.” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009).

Reasonableness is expected of a sentence falling within the guideline range, and it

may be further evinced by a sentence well below the statutory maximum. United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a 16-level enhancement is warranted

“[i]f the defendant previously was deported . . . after . . . a conviction for a felony




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that is a crime of violence.” 1 In United States v. Adeleke, 968 F.2d 1159 (11th Cir.

1992), we upheld the enhancements under § 2L1.2(b)(1) against claims of inequity

because: (1) they rationally promoted the policy of deterring aliens who were also

convicted felons from reentering the United States; and (2) they did not result in

improper double counting because the Sentencing Commission “clearly intended

prior felonies to count against defendants under both the criminal history section

and § 2L1.2.” Id. at 1160-61. Under the prior precedent rule, we are bound to

follow a prior binding precedent unless and until it is overruled by this Court en

banc or by the Supreme Court. United States v. Vega-Castillo, 540 F.3d 1235,

1236 (11th Cir. 2008).

       Mendez-Domingo’s 46-month sentence is both procedurally and

substantively reasonable. Procedurally, the district court properly calculated the

guideline range, acknowledged the range as “advisory,” stated that it had

considered the § 3553(a) factors, and expressly addressed his arguments. 2 A fuller

discussion of the § 3553(a) factors was not, as Mendez-Domingo argues, required.

See Amedeo, 487 F.3d at 832. Moreover, the court heard his arguments regarding

       1
                The enhancement was applied in this case because Mendez-Domingo’s
deportation followed his 2004 conviction for aggravated indecent liberties with a child, and
“crime of violence” is defined under § 2L1.2, comment (n.1(B)(iii)) to include “sexual abuse of a
minor.”
        2
                On appeal, the government argues that Mendez-Domingo failed to adequately
preserve his procedural unreasonableness claim at trial, and accordingly we should review the
procedural reasonableness of his sentence for plain error. See Castro, 455 F.3d at 1251.
Because Mendez-Domingo’s procedural claim fails under either an abuse of discretion or a plain
error standard, we need not resolve this issue.
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the enhancement at the sentencing hearing and acknowledged that it had read his

sentencing memorandum, which elaborated on his main points. The court even

expressed sympathy for Mendez-Domingo’s situation; yet, deferring to the policy

and intent underlying § 2L1.2(b)(1)(A)—to deter aliens who have been convicted

of a felony from reentering the United States—the court elected not to vary from

the guideline range. Thus, no procedural error occurred.

      Substantively, Mendez-Domingo’s sentence is reasonable in light of the

record and the § 3553(a) factors. His appeal turns on two bases: the purported

inequity of the 16-level enhancement, and the disparity between his sentence and

that imposed on a single comparator defendant sentenced by the same court. First,

our decision in Adeleke forecloses his inequity argument, a point he conceded at

sentencing, absent an intervening change in the law. See Vega-Castillo, 540 F.3d

at 1236. Turning to his disparity argument, it is worth noting, as the government

points out, that the comparator defendant was sentenced after Mendez-Domingo;

therefore, the district court could not have considered the comparator’s sentence

when imposing sentence in this case. In any event, a number of discrepancies

disprove the requisite similarity of situation—for instance, Mendez-Domingo and

the comparator differ with respect to length of residence in the United States,

family ties to this country, and criminal history. Moreover, Mendez-Domingo’s

46-month prison term was the lowest provided by the applicable guideline range,


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and was also well below the 20-year statutory maximum. The district court’s

sentence was substantively reasonable, and we affirm Mendez-Domingo’s

sentence.

      AFFIRMED.




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