              Case: 17-10418    Date Filed: 01/22/2018   Page: 1 of 7


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                            Nos. 17-10418; 17-11994
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket Nos. 1:16-cr-00167-CAP-JSA-1,
                            1:16-cr-00412-CAP-1


UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,

                                      versus

NICOLAS GUTIERREZ-LOPEZ,

                                                         Defendant - Appellant.

                          ________________________

                  Appeals from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                (January 22, 2018)

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

      In this consolidated appeal, Nicolas Gutierrez-Lopez challenges the

reasonableness of his 40-month sentence, which the district court imposed after he
              Case: 17-10418     Date Filed: 01/22/2018   Page: 2 of 7


was convicted of illegal reentry, and consecutive 12-month sentence following the

revocation of his supervised release. After careful review, we affirm.

                                         I.

      Gutierrez-Lopez, a native and citizen of Mexico, pled guilty to illegal

reentry by a previously deported noncitizen and was sentenced to 48 months’

imprisonment followed by two years’ supervised release. As relevant here, the

conditions of his supervised release precluded him from reentering the country

following deportation and required him to report to the probation office if he did

return. After serving his term of imprisonment, Gutierrez-Lopez was deported to

Mexico. Gutierrez-Lopez returned to the United States, however, and, after being

arrested on suspicion of an unrelated offense, was charged with a new illegal

reentry offense and with violating the conditions of his current term of supervised

release. These two charges—specifically, the terms of incarceration that resulted

from Gutierrez-Lopez’s admissions of guilt—are the subject of this appeal.

      Gutierrez-Lopez pled guilty to the illegal reentry charge and conceded that

he had violated the conditions of his supervised release. A presentence

investigation report (“PSI”) prepared in advance of sentencing detailed his

personal history. Gutierrez-Lopez originally had entered the United States as a

child without valid entry documents in 1989; he sought to become a lawful




                                          2
              Case: 17-10418      Date Filed: 01/22/2018   Page: 3 of 7


permanent resident but his two applications for permanent resident status were

denied.

      The PSI assigned Gutierrez-Lopez a total offense level of 17 and a criminal

history category of V, yielding a guidelines range of 46 to 57 months’

imprisonment for the illegal reentry conviction. His guidelines range for the

supervised release violation was 8 to 24 months’ imprisonment. The offenses

carried a 20-year and 2-year statutory maximum, respectively.

      At sentencing, Gutierrez-Lopez requested a sentence of time served for both

his illegal reentry offense and his supervised release violation. He noted that he

was brought to the United States as a small child, had lived here his entire life, and

all of his parents and siblings had obtained legal status in the United States.

Gutierrez-Lopez testified that he returned to the United States illegally because he

had nowhere to live when he was deported to Mexico. But, he testified, his

grandmother recently passed away, leaving him and his siblings her house in

Mexico, so he had no reason to reenter the United States illegally again now that

he had a place to live in Mexico. Gutierrez-Lopez presented letters from two

siblings describing him as a loving brother who was instrumental in caring for his

family financially and emotionally.

      The district court reviewed the siblings’ letters and the PSI, and sentenced

Gutierrez-Lopez to 40 months’ imprisonment for his illegal reentry conviction, a


                                           3
              Case: 17-10418     Date Filed: 01/22/2018    Page: 4 of 7


downward variance, and 12 months’ imprisonment upon revocation of his

supervised release. This is Gutierrez-Lopez’s appeal.

                                          II.

      A district court must impose a sentence that is substantively reasonable,

including upon revocation of supervised release. United States v. Gonzalez, 550

F.3d 1319, 1323 (11th Cir. 2008); United States v. Sweeting, 437 F.3d 1105, 1106-

07 (11th Cir. 2006). We review the reasonableness of a sentence under a

deferential abuse of discretion standard, considering the totality of the

circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a). Gall v.

United States, 552 U.S. 38, 41 (2007).

      Under § 3553(a), the district court is required to impose a sentence

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

§ 3553(a)(2)—the need to reflect the seriousness of the offense; promote respect

for the law; provide just punishment; deter criminal conduct; protect the public

from the defendant’s future criminal conduct; and effectively provide the

defendant with educational or vocational training, medical care, or other

correctional treatment. 18 U.S.C. § 3553(a)(2). 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

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


                                           4
               Case: 17-10418     Date Filed: 01/22/2018   Page: 5 of 7


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

Id. § 3553(a)(1), (3)-(7).

      The party challenging a sentence bears the burden of proving the sentence is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A

district court imposes a substantively unreasonable sentence when it fails to afford

consideration to relevant factors that were due significant weight, gives significant

weight to an improper or irrelevant factor, or commits a clear error of judgment in

considering the proper factors. United States v. Irey, 612 F.3d 1160, 1189-90 (11th

Cir. 2010) (en banc). Generally the weight to be accorded any given § 3553(a)

factor is a matter committed to the sound discretion of the district court, United

States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008); a district court commits a

clear error of judgment when it “considers the proper factors but balances them

unreasonably” and imposes a sentence that “does not achieve the purposes of

sentencing as stated in § 3553(a),” Irey, 612 F.3d at 1189-90 (internal quotation

marks omitted). Although we do not automatically presume a within-guidelines

sentence to be reasonable, ordinarily we expect it to be. United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008).

                                         III.

      Gutierrez-Lopez makes a single argument on appeal. He contends that his

total sentence of 52 months’ imprisonment is substantively unreasonable because


                                          5
              Case: 17-10418     Date Filed: 01/22/2018    Page: 6 of 7


in formulating it the district court focused myopically on the need for deterrence

and failed to consider mitigating circumstances of his illegal reentry, including that

he: was brought to the United States as a child by his family; was raised in the

United States; was the only member of his family not to obtain United States

citizenship; was deported to Mexico, a country he barely remembered; and was

homeless and without any support system upon his return to Mexico. The record,

however, demonstrates that the district court considered these facts in mitigation of

Gutierrez-Lopez’s total sentence. The district court expressly stated that it read the

letters from Gutierrez-Lopez’s siblings. The court also listened to and engaged

with defense counsel’s recitation of these mitigating circumstances and Gutierrez-

Lopez’s allocution.

      Because the record makes clear that the district court considered Gutierrez-

Lopez’s personal mitigating circumstances, his challenge at bottom is to the greater

weight the court assigned the need for deterrence. We cannot say, however, that

the district court balanced the need for deterrence and Gutierrez-Lopez’s personal

mitigating circumstances unreasonably, especially in light of the sentence it

imposed—a downward variance for Gutierrez-Lopez’s illegal reentry conviction

and a within-guidelines sentence upon revocation of his supervised release. See

Irey, 612 F.3d at 1189-90; Hunt, 526 F.3d at 746. Thus, we reject Gutierrez-




                                          6
              Case: 17-10418    Date Filed: 01/22/2018   Page: 7 of 7


Lopez’s challenge and affirm the total 52-month sentence the district court

imposed.

      AFFIRMED.




                                         7
