            Case: 15-12991   Date Filed: 02/11/2016   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12991
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cr-20513-UU-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

JESUS PEREZ-PRADO,

                                              Defendant - Appellant.

                       ________________________

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

                             (February 11, 2016)

Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Jesus Perez-Prado appeals his 76-month sentence, imposed at the middle of

the advisory guideline range. Mr. Perez-Prado, who pled guilty to one count of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1),

raises two issues on appeal. First, he argues that his sentence is substantively

unreasonable under 18 U.S.C. § 3553(a). Second, he contends that his 2011

marijuana possession conviction is not a “controlled substance offense” under the

Sentencing Guidelines. After careful review, we affirm.

                                        I

      On July 2, 2013, two police officers approached Mr. Perez-Prado and asked

to question him following a suspicious vehicle transaction. Upon his consent to

questioning, one of the officers asked Mr. Perez-Prado about an object he had just

placed into his waistband. Mr. Perez-Prado admitted that it was a firearm, and the

officers recovered a .25 caliber Berretta, loaded with seven rounds of ammunition,

and two additional loaded magazines from his person.

      In December of 2013, Mr. Perez-Prado pled guilty without a plea agreement

to being a felon in possession of a firearm and ammunition, in violation of 18

U.S.C. § 922(g)(1). Based on a total offense level of 20 and a criminal history

category of VI, the probation officer calculated Mr. Perez-Prado’s advisory

guideline range to be 70 to 87 months in prison. See PSI at ¶ 76; U.S.S.G. §

2K2.1(a)(4)(A). The probation officer did not recommend a three-level downward


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adjustment for timely acceptance of responsibility because Mr. Perez-Prado tested

positive for cocaine and was re-arrested for possession of marijuana and drug

paraphernalia while he was out on bond. See id. at ¶ 12.

      At his first sentencing hearing, held in February of 2014, Mr. Perez-Prado

objected to the base offense level of 20, arguing that his conviction for marijuana

possession was not a “controlled substance offense” under the Guidelines. The

district court sustained his objection and reduced the base offense level to 14,

under U.S.S.G. § 2K2.1(a)(6). This resulted in a new advisory guideline range of

37 to 46 months. The court, however, imposed a 48-month sentence, reasoning

that the upward variance of two months was reasonable because of Mr. Perez-

Prado’s high potential for violence, need for incarceration, and mental illness, as

well as the benefits he might receive from a structured environment.

      The government appealed his 48-month sentence and argued that the district

court had erred in concluding that Mr. Perez-Prado’s conviction for possession

with intent to sell or deliver marijuana in violation of Fla. Stat. § 893.13(1) was not

a “controlled substance offense” under the Guidelines. We ruled in favor of the

government and remanded the case for re-sentencing on March 9, 2015. See

United States v. Perez-Prado, 598 F. App’x 739, 740 (11th Cir. 2015). In light of

our determination that his 2011 offense qualified as a “controlled substance

offense,” the advisory guideline range increased to 70 to 87 months.


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          At re-sentencing in June of 2015, the government requested a 70-month

sentence and Mr. Perez-Prado asked for a downward variance to 60 months.

After considering the statements of the parties, the relevant § 3553(a) factors, and

the advisory guideline range, the district court decided not to vary and imposed a

midrange sentence of 76 months’ imprisonment followed by three years of

supervised release with special conditions, including treatment for mental health,

substance abuse, anger control, and domestic violence. Mr. Perez-Prado now

appeals.

                                                 II

          We review the reasonableness of sentences under a deferential abuse of

discretion standard of review. See Gall v. United States, 552 U.S. 38, 41 (2007).

We first consider procedural unreasonableness and then determine whether the

sentence was substantively reasonable in light of the totality of the circumstances.

Id. at 51.1

          We will vacate a sentence 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.’” United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc). The party challenging the sentence


1
    Mr. Perez-Prado does not argue that his sentence was procedurally unreasonable.
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bears the burden of showing that it is unreasonable in light of the record and the §

3553(a) factors. See United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      A district court “shall impose a sentence sufficient, but not greater than

necessary to comply with the purposes” listed in § 3553(a), including the need “to

afford adequate deterrence to criminal conduct, to protect the public from further

crimes of the defendant [and] to provide the defendant with needed . . . correctional

treatment in the most effective manner.”            18 U.S.C. § 3553(a)(2)(B)-(D).

Additional factors include “the nature and circumstances of the offense and the

history and characteristics of the defendant . . . [and] . . . the applicable category of

offense committed by the applicable category of defendant as set forth in the

guidelines.” Id. at § 3553(a)(1), (4)(A). The weight given to any specific factor is

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

F.3d 739, 743 (11th Cir. 2007). Furthermore, a district court does not commit

reversible error simply because it attaches great weight to a single factor, but “[a]

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

‘symptom’ of an unreasonable sentence.” See United States v. Williams, 526 F.3d

1312, 1322 (11th Cir. 2008).

      Here, the district court explicitly considered the § 3553(a) factors and

determined that a midrange sentence within the applicable advisory guideline

range of 70 to 87 months was warranted. On appeal, Mr. Perez-Prado contends


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that the court discounted his tragic life, the substantial history of his mental health

illness, and his lack of literacy, skills, and education. This argument, however, is

not supported by the record. At re-sentencing, Mr. Perez-Prado conceded that his

criminal history was significant, and the district court noted that he would receive

some psychiatric therapy and his original medication while incarcerated. In its

discussion of supervised release, the court also imposed special conditions to

address Mr. Perez-Prado’s need for mental health and substance abuse treatment.

The court was not unsympathetic to Mr. Perez-Prado’s concerns; rather, it was

asked to balance his demonstrated history of being a danger to the community with

his need for structure, incarceration, and mental health treatment where mental

health facilities are no longer a viable option.

      Mr. Perez-Prado also argues that the district court misapplied the § 3553(a)

factors by focusing only on the need to protect the public from further crimes.

Although the court did highlight his criminal history and the danger he posed to the

community in choosing to impose a midrange sentence, reference to a single factor

is not enough to establish unreasonableness. See Williams, 526 F.3d at 1322. In

any event, the court evaluated several other statutory factors, including Mr. Perez-

Prado’s mental health history and characteristics, the need to deter further criminal

conduct, his need for correctional treatment and structure, and the applicable

category of the offense committed. Finally, the 76-month sentence here is well


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below the statutory maximum of ten years and falls in the midrange of the advisory

guidelines—both of these facts indicate reasonableness.       See United States v.

Winigear, 422 F.3d 1241, 1246 (11th Cir. 2005) (comparing actual prison term

imposed to twenty-year statutory maximum). See also United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005) ([A]lthough “we do not automatically presume a

sentence within the guidelines range is reasonable, we ‘ordinarily . . . expect a

sentence within the Guidelines range to be reasonable.’”).

      Mr. Perez-Prado has not demonstrated that his sentence was substantively

unreasonable in light of the record and the § 3553(a) factors.          We therefore

conclude that the district court did not abuse its discretion in imposing a 76-month

sentence.

                                        III

      Mr. Perez-Prado also maintains that, at re-sentencing, the district court

erroneously classified his prior conviction for possession with intent to sell or

deliver marijuana as a “controlled substance offense” pursuant to § 4B1.2(b). His

claim is foreclosed by both the law of the case and binding precedent. See United

States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014) (finding that a conviction

under Fla. Stat. § 893.13(1) constitutes a “controlled substance offense” as defined

in § 4B1.2(b) of the Guidelines). Mr. Perez-Prado raises this issue only to preserve

it for any future review.


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                                    IV

We affirm Mr. Perez-Prado’s sentence.

AFFIRMED.




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