           Case: 17-12965   Date Filed: 04/23/2018   Page: 1 of 5


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12965
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:17-cr-20179-FAM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus



RAFAEL LOPEZ-MORALES,

                                                         Defendant-Appellant.

                       ________________________

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

                              (April 23, 2018)

Before TJOFLAT, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
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       Rafael Lopez-Morales received a sixty-month, statutory-maximum sentence

after pleading guilty to one count of encouraging and inducing aliens to enter the

United States, 8 U.S.C. § 1324(a)(1)(A)(iv), (v)(II). On appeal, he challenges this

sentence, which varies upward from the applicable Guidelines range of thirty-one

to forty-one months. Lopez makes two arguments: (1) the District Court based its

upward variance “solely” on Lopez’s criminal history, a factor already accounted

for in his Guidelines range, and therefore failed to consider relevant 18 U.S.C.

§ 3553(a) factors and imposed a sentence greater than necessary to achieve the

purposes of sentencing; and (2) in considering Lopez’s criminal history, the Court

did not account for the nature and circumstances of his prior offenses. We affirm

Lopez’s sentence.

       We review the reasonableness of a sentence, whether inside or outside the

Guidelines range, under a deferential abuse-of-discretion standard. Gall v. United

States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The party challenging a

sentence has the burden of proving that the sentence is unreasonable in light of the

record. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The district

court must “impose a sentence sufficient, but not greater than necessary, to comply

with the purposes” listed in § 3553(a)(2).1 18 U.S.C. § 3553(a). A sentence


       1
         These purposes include the need to deter criminal conduct, promote respect for the law,
and protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(2)(A)–(C). In
sentencing a defendant district courts must also consider, among other factors, the nature and
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outside the Guidelines range need not be justified by extraordinary circumstances.

Gall, 552 U.S. at 47, 128 S. Ct. at 595. Further, the weight given to any specific

§ 3553(a) factor is left to the sound discretion of the district court, United States v.

Garza-Mendez, 735 F.3d 1284, 1290 (11th Cir. 2013), and the court may consider

factors already accounted for in the Guidelines range. 2 The district court must only

acknowledge that it considered the defendant’s arguments at sentencing and the

§ 3553(a) factors; it is not required to expressly discuss each factor. Garza-

Mendez, 735 F.3d at 1290. However, the district court abuses its discretion if it

fails to consider relevant factors that were due significant weight, gives an

improper or irrelevant factor substantial weight, or commits a clear error of

judgment by unreasonably balancing the proper factors. United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010) (en banc).

       Here, the District Court did not abuse its discretion by basing its upward

variance in part on Lopez’s criminal history. The offense before us represents

Lopez’s third alien-smuggling offense. He was sentenced to one year and one day

of imprisonment for his first violation and forty-eight months of imprisonment for


circumstances of the underlying violation, the history and characteristics of the defendant, the
kinds of sentences available, and the applicable Guidelines range. Id. § 3553(a)(1), (a)(3)–(4).
       2
         See United States v. Williams, 526 F.3d 1312, 1324 (11th Cir. 2008) (per curiam)
(reasoning that although the defendant’s previous offenses were part of the Guidelines
calculation, those offenses fit squarely in the § 3553(a) criminal history and characteristics
factors and could thus properly be considered by the district court); United States v. Amedeo, 487
F.3d 823, 833–34 (11th Cir. 2007) (determining that a district court could rely on factors in
imposing an upward variance that were already included in a Guidelines enhancement).
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his second. 3 Further, in the time between Lopez’s second and third alien-

smuggling offenses, he acquired Florida convictions for grand theft and trafficking

in a controlled substance. He was on state probation when committing the instant

offense. The District Court could consider this criminal history in imposing an

upward variance even though it was already calculated into the applicable

Guidelines range.4

       What’s more, in imposing Lopez’s sentence the District Court expressly

noted the need to protect the public from further immigration-related crimes, and

discussed the need to impose a sentence harsher than those imposed for Lopez’s

previous alien-smuggling convictions—presumably for reasons including

deterrence. The Court also considered that Lopez committed this crime while on

state probation. Finally, the Court noted at sentencing that Lopez was originally

charged with twenty-one counts of alien smuggling but pleaded guilty only to one.

The Court stated, “[Lopez’s] lawyer was not only competent, but extremely

successful in achieving a one-count [sic] and dismissal of the other counts,

       3
          For this second offense, Lopez originally received a sixty-month sentence from the
District Court. In United States v. Lopez, 343 F. App’x 484, 486 (11th Cir. 2009) (per curiam),
however, this Court reversed, stating, “By focusing only on Lopez’s criminal history [of one
prior alien-smuggling conviction], without providing any other justification as to the need to
deviate almost fifty percent above the high end of the guideline range, we believe the district
court abused its discretion in concluding that this 60-month sentence was sufficient but not
greater than necessary.” (Footnote omitted). The case before us is distinguishable, as Lopez’s
criminal history is now more extensive—he has two alien-smuggling convictions and two state
convictions—and the district court did not rely solely on Lopez’s criminal history in varying
upward.
       4
           See supra note 2.
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knowing that most judges, most of the time, with a repeat offender committing the

same crime, would give consecutive sentences.” Hence the Court did not base

Lopez’s varied sentence “solely” upon his criminal history and, on the whole, did

not impose a sentence greater than necessary to achieve the purposes of sentencing.

      The District Court also did not abuse its discretion by, as Lopez contends,

failing to account for the difference between Lopez’s prior alien-smuggling

offenses and this one. The gist of Lopez’s argument is that his first two offenses

were more egregious than his third—the first offense involved fleeing from the

Coast Guard and the second involved, inter alia, conditions promoting greater

danger to the aliens. His sentence for his third offense, he asserts, should not be

the harshest, thus indicating that the Court sentenced him “without regard to the

circumstances of [his previous] offenses.” This argument is flawed. It asks that

this Court blind itself of Lopez’s criminal history and issue a sentence based solely

on conduct. That this was Lopez’s third alien-smuggling offense, however, is a

proper consideration for imposing a sentence greater than those imposed for

Lopez’s previous violations. The Court could also consider that Lopez had

committed two state crimes since his second alien-smuggling conviction, and that

he committed the instant offense while on state probation.

      Accordingly, we affirm Lopez’s sentence.

      AFFIRMED.


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