                                                                 [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                    DECEMBER 13, 2011
                                            No. 11-11447
                                        Non-Argument Calendar           JOHN LEY
                                                                         CLERK
                                      ________________________

                           D.C. Docket No. 8:10-cr-00202-RAL-AEP-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                 versus

ALFONSO GALLEGOS-OLIVO,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (December 13, 2011)

Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Alfonso Gallegos-Olivo appeals his 18-month sentence, imposed under 18

U.S.C. § 3583(e) for violation of the conditions of his supervised release. He

violated his supervision by reentering the country illegally within two years of his

deportation, a crime for which he was also separately prosecuted. Gallegos-Olivo

argues that his sentence, which is 6 months higher than his advisory guideline

sentence, is substantively unreasonable. After carefully reviewing the record and

the parties’ briefs, we affirm.

      Gallegos-Olivo has the burden of establishing his sentence as unreasonable.

United States v. Talley, 431 F.3d 784, 788 (11th Cir 2005). He does not claim any

procedural defect in his sentencing, so we proceed to review the sentence for

substantive reasonableness, using an abuse of discretion standard. United States v.

Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008); United States v. Sweeting, 437 F.3d

1105, 1106–07 (11th Cir. 2006). Applying this standard, we consider “the totality

of the circumstances, including the extent of any variance from the Guidelines

range.” United States v. Gall, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We

disturb a sentence only when 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.” Pugh, 515 F.3d at 1191 (quotation

                                          2
marks omitted); see 18 U.S.C. § 3583(e).1

       In a revocation case, the court should state its reasons for finding that a

defendant’s violation of the conditions of supervised release, and to a limited

extent this defendant’s offense and history, are “sufficiently compelling” to

support a variance. Gall, 552 U.S. at 50, 128 S. Ct. at 597; see U.S.S.G. Ch. 7, Pt.

A 3(b), intro. comment. (stating, in a revocation sentencing, the district court

“should sanction primarily the defendant’s breach of trust, while taking into

account, to a limited degree, the seriousness of the underlying violation and the

criminal history of the violator.”).

       According to Gallegos-Olivo,“the breach of trust” inherent in the violation

of his condition of supervised release is already taken into account in establishing

the guideline range. Id. Given that his breach of trust is intended to be the

       1
          Under 18 U.S.C. § 3583(e), when courts impose a sentence after revoking supervised
release, they consider these § 3553(a) factors:

           (1) the nature and circumstances of the offense and the history and
           characteristics of the defendant; (2) the need for the sentence imposed – (B)
           to afford adequate deterrence to criminal conduct; (C) to protect the public
           from further crimes of the defendant; and (D) to provide the defendant with
           needed educational or vocational training, medical care, or other correctional
           treatment . . .; (4) the kinds of sentence and the sentencing range [set forth
           in the sentencing guidelines] . . . ; (5) any pertinent policy statement . . . ; (6)
           the need to avoid unwarranted sentence disparities among defendants with
           similar records who have been found guilty of similar conduct; and (7) the
           need to provide restitution to any victims of the offense.

§ 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7).

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“primar[y]” determinant of his sentence, id., Gallegos-Olivo contends that “the

record is devoid of a reason—other than [the district court’s] personal opinion

about illegal reentry—for imposing” an upward variance. In particular, he notes

that “there was no explanation” of why his violation was different “than any other

illegal reentry.”

      Our review of the record leads us to conclude that it contains sufficient

explanation by the district court of why a guideline sentence did not adequately

address the facts surrounding Gallegos-Olivo’s violation. During the sentencing

hearing, the district court referred to both general and individual considerations in

making its sentencing decision, stating:


      I don’t know what we have to do to deter people like Mr.
      [Gallegos-]Olivo. It’s becoming an epidemic. We prosecute
      them, we send them to Federal prison, they’re deported and they
      brazenly come back into our country. You know, in my view, a
      sentence within the advisory guideline range is just not
      reasonable, in my view, a sentence of 18 months is reasonable
      when I look at all the statutory factors in terms of deterring future
      criminal conduct, protecting the public, when I look at the nature
      and circumstances of his new criminal activity, when I look at his
      history and characteristics and all those statutory factors.

Earlier in the hearing, the district court expressed concern that Gallegos-Olivo was

not deterred by the 24-month sentence he received for his original criminal

conviction “‘cause he comes back.” The court also noted a specific aspect of his


                                           4
criminal history—state officials eschewed prosecuting Gallegos-Olivo in state

court for threatening his family members with a gun, instead favoring federal

prosecution for the lesser offense of possessing a firearm as an illegal alien.

       The court’s observation of an “epidemic” of illegal reentry did not render

its determination substantively unreasonable. Rather, the district court’s reference

to a broader national phenomenon shed light on why Gallegos-Olivo’s particular

type of breach of trust—his illegal reentry—contributed to the “seriousness of the

underlying violation” in a way not already incorporated into the applicable

guideline range. U.S.S.G. Ch. 7, Pt. A 3(b), intro. comment (allowing the court to

rely “to a limited degree” on the “seriousness of the underlying violation” in

revocation sentencing). A district court judge is certainly permitted to refer to

what he has “learned from similar cases over the years,” so long as he ties that

observation to the individual he is sentencing. Shaw, 560 F.3d at 1238.

      The district court also referenced Gallegos-Olivo’s criminal history as a

basis for the variance, in light of considerations of deterrence and protecting the

public. Specifically, the court expressed concern over Gallegos-Olivo’s alleged

involvement in a more serious offense for which he was never prosecuted. The

commentary to the guidelines makes clear that Gallegos-Olivo’s criminal history

may be considered, though only “to a limited degree.” U.S.S.G., Ch. 7, Pt. A 3(b),

                                          5
intro. comment.

      The district court’s explicit reliance on the § 3553(a) factors, i.e. the

seriousness of the underlying offense and Gallegos-Olivo’s criminal history,

demonstrates that the court has sufficiently “considered [the] parties’ arguments

and has a reasoned basis” for imposing an upward variance of 6 months. Rita v.

United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007).

      AFFIRMED.




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