           Case: 12-11875   Date Filed: 02/14/2013   Page: 1 of 7

                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-11875
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:11-cr-00011-MP-GRJ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

RAUL PAGAN RODRIGUEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 14, 2013)

Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
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         Raul Rodriguez appeals his 71-month sentence impassed at the high end of

the applicable guideline range, after he pleaded guilty to one count of conspiracy to

commit robbery, in violation of 18 U.S.C. § 1951. Rodriguez argues here that his

sentence was substantively unreasonable in light of his two other mandatory 84-

month sentences, which the district court was required to impose to run

consecutively under § 924(c)(1)(A)(ii). Rodriguez argues that a sentence at the

bottom of the guideline range for conspiracy to commit robbery would have been

sufficient, but not greater than necessary, to comply with the statutory purposes of

sentencing.

                                          I.

         In October and December of 2010, Rodriguez and two co-conspirators

committed two armed robberies of La Tienda Mexicana, a small store in Fanning

Springs, Florida. Rodriguez pleaded guilty to one count of conspiring to interfere

with commerce by robberies, threats or violence, in violation of 18 U.S.C. § 1951,

and two counts of using, carrying or possessing a firearm during, in relation to, or

in furtherance of a robbery affecting commerce in violation of §§ 924(c)(1)(A)(ii)

and 2.

         During Rodriguez’s plea hearing, the government advised the court that

Rodriguez was armed during the robberies. Rodriguez denied that he entered the

store with a firearm during the October robbery. While he acknowledged being


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armed during the December robbery, he disputed the severity of his actions,

claiming that he had not pointed his gun at the store owner, but had merely placed

it on the counter. The Magistrate Judge accepted the government’s version of the

facts and recommended that the district court accept the guilty plea, which it did.

      The Presentence Investigation Report (PSI) explained that under 18 U.S.C.

§ 924(c)(1)(A)(ii) the two counts for armed robbery carried a minimum term of

imprisonment of seven years (or 84 months) each to run consecutively to the term

imposed for conspiracy. The PSI calculated a guideline range of 57 to 71 months

for the conspiracy count. Neither party filed objections to the PSI, and at

sentencing both parties assented to the PSI’s findings and guideline calculations.

      The court sentenced Rodriguez to a total of 239 months imprisonment,

arrived at with a 71-month sentence for conspiracy together with two mandatory

84-month consecutive sentences for armed robbery. The court explained that it

was, at least in part, persuaded to impose a sentence at the high end of the

guideline range for the conspiracy in light of the victim impact statement of Ms.

Esther Osorio, who “suffered tremendously and continues to suffer as a result of

the trauma” incurred during the robberies. The court also stated “I have carefully

considered all of the factors under the law that I must consider, specifically in 18

U.S.C. 3553(a), and . . . I do find that a sentence of 239 months is sufficient but not




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greater than necessary to comply with the purposes of sentencing set forth under

the law.” Neither party objected.

                                           II.

      Rodriguez attacks his 71-month sentence as substantively unreasonable. He

argues that in light of his mandatory consecutive 84-month sentences, a sentence at

the low end of the guideline range was sufficient, but not greater than necessary, to

achieve the goals of sentencing. Rodriguez also asserts that the court erred

because it did not explain how his sentence was consistent with the sentencing

factors set forth in 18 U.S.C. § 3553(a) and that those factors warranted a sentence

at the lower end of the guideline range.

      We review the reasonableness of a sentence under a deferential abuse of

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

586, 591 (2007). The district court must impose a sentence “sufficient, but not

greater than necessary, to comply with the purposes” listed in 18 U.S.C.

§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote

respect for the law, provide just punishment for the offense, deter criminal conduct,

and protect the public from the defendant’s future criminal conduct. See 18 U.S.C.

§ 3553(a)(2). In imposing a particular sentence, the court must also consider the

nature and circumstances of the offense, the history and characteristics of the

defendant, the kinds of sentences available, the applicable guideline range, the


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pertinent policy statements of the Sentencing Commission, the need to avoid

unwarranted sentencing disparities, and the need to provide restitution to victims.

Id. at § 3553(a)(1), (3)-(7).

      In reviewing the reasonableness of a sentence, we first examine the

procedure by which the district court arrived at the sentence. Gall, 552 U.S. at 51,

128 S. Ct. at 597. A sentence is procedurally unreasonable if, inter alia, the district

court failed to consider the § 3553(a) factors or failed to explain adequately the

chosen sentence. Id. “The sentencing [court] should set forth enough to satisfy the

appellate court that [it] has considered the parties’ arguments and has a reasoned

basis for exercising [its] own legal decisionmaking authority.” Rita v. United

States, 551 U.S. 338, 356, 127 S. Cr. 2456, 2468 (2007). The sentencing judge

need not explicitly explain every § 3553 assessment in detail. “Rather, an

acknowledgement by the district judge that he or she has considered the § 3553(a)

factors will suffice.” United States v. Turner, 474 F.3d 1265, 1281 (11th Cir.

2007).

      Once we determine that the sentence was procedurally sound, we then

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

of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128 S. Ct. at

597. “The party challenging the sentence bears the burden to show the sentence is

unreasonable in light of the record and the § 3553(a) factors.” United States v.


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Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The weight to be given to any

particular factor under § 3553(a) is left to the sound discretion of the district court,

absent a clear error of judgment. United States v. Amedeo, 487 F.3d 823, 832

(11th Cir. 2007).

      Although we do not automatically presume a sentence falling within the

guideline range to be reasonable, we ordinarily expect such a sentence to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). 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 dictated by the

facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(quotation marks omitted).

                                          III.

      Upon review of the record and consideration of the arguments of the parties,

we affirm.

      The district court stated expressly that it had considered the § 3553(a)

factors, thus establishing procedural reasonableness under the standards set forth in

Rita and Turner.

      Rodriguez’s sentence was also substantively reasonable. During the

sentencing hearing, the district court stated that it decided to impose a sentence at


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the high end of the guideline range because the Guidelines did not take account of

the fact that the victim had “suffered tremendously and continues to suffer as a

result of that trauma.” Notably, the record indicates that Rodriguez and his

accomplices twice entered the store, robbed it while holding victims at gunpoint,

stole thousands of dollars, and restrained the victims before fleeing. The court’s

consideration of the impact on the victim and the nature of the offenses was

appropriate, given that § 3553(a) instructs the court to consider the nature and

circumstances of the offense, as well as the seriousness of the crime. See 18

U.S.C. § 3553(a)(1)-(2). Rodriguez has therefore failed to demonstrate that his 71-

month sentence was outside the range of reasonable sentences that the district court

was permitted to consider. See Irey, 612 F.3d at 1190.

      Because, Rodriguez has not demonstrated an abuse of discretion by the

district court, we affirm his 71-month sentence.


      AFFIRMED.




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