           Case: 12-16171   Date Filed: 08/14/2013   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-16171
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cr-20460-PAS-1



UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                 versus

GARY MAREUS,

                                                     Defendant-Appellant.

                      ________________________

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

                            (August 14, 2013)

Before DUBINA, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Appellant Gary Mareus appeals his 46-month sentence after pleading guilty

to reentry of the United States as a deported alien. After reviewing the record and

reading the parties’ briefs, we affirm his sentence.

                                          I.

      Mareus, a native of the Bahamas and a national of both the Bahamas and

Haiti, was deported and physically removed from the United States to Haiti in

1996. In 1998, he illegally reentered the United States and evaded law

enforcement for several years. Mareus was eventually discovered living in Miami,

Florida, and was indicted in June 2012 with illegally reentering the United States

after previous deportation and removal, in violation of 8 U.S.C. § 1326(a), (b)(2).

Mareus entered a guilty plea.

      The probation office prepared a presentence investigation report (“PSI”) to

assist the district court in determining Mareus’s sentence. The PSI determined that

Mareus had a total offense level of 24 and a criminal history category of III, which

called for a sentence of 63 to 78 months’ imprisonment. At sentencing, the parties

agreed that the total offense level should be reduced by three levels because

Mareus had accepted responsibility. The court then concluded that the advisory

sentencing guidelines range was 46 to 57 months.

      The court went on to consider the 18 U.S.C. § 3553(a) sentencing factors.

The government advocated the imposition of a 46-month sentence because Mareus


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had been in the United States illegally for 14 years and because he had been

previously convicted of a series of firearms and narcotics crimes. Mareus argued

for a more lenient sentence of five years’ probation because his previous criminal

convictions were remote in time and would not have been considered in

determining his criminal history category if he had illegally reentered the United

States in 2012 rather than in 1998. He also requested a downward variance in light

of his cultural assimilation and ties to the United States.

      In light of Mareus’s criminal history, the district court declined to impose a

probationary sentence or to grant a downward variance. It imposed a sentence of

46 months’ imprisonment, at the low end of the guidelines range, and a three-

month term of supervised release. Mareus timely appealed his sentence.

      On appeal, Mareus argues that his sentence is substantively unreasonable

because the district court placed undue weight on a single factor listed in 18 U.S.C.

§ 3553(a). He asserts that the district court, in focusing solely on Mareus’s

criminal record, unreasonably disregarded other factors related to Mareus’s history

and characteristics, including his cultural assimilation into the United States and

the fact that his entire family resides in the United States. He further argues that

the district court’s focus on Mareus’s criminal history was unreasonable because

his convictions were remote in time.

                                          II.


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

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). The burden of establishing unreasonableness lies with the party

challenging the sentence. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.

2010). 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). A sentence

well below the statutory maximum penalty is another indicator of a reasonable

sentence. See United States v. Gonzalez, 550 F.3d 1319, 1322, 1324 (11th Cir.

2008) (holding that a 50-month sentence was reasonable in part because it was well

below the ten-year statutory maximum).

      Reviewing a sentence’s reasonableness requires two steps. First, we ensure

that the sentence was procedurally reasonable, meaning the district court properly

calculated the guideline range, treated the Guidelines as advisory, considered the

§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and

adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597.

Once we determine that a sentence is procedurally sound, we examine whether the

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

Id. 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


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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 also must 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 unwarranted

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

§ 3553(a)(1), (3)–(7).

      The weight given to any specific § 3553(a) factor is committed to the sound

discretion of the district court. United States v. Overstreet, 713 F.3d 627, 638

(11th Cir. 2013). We will reverse “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) (internal quotation marks omitted). A

district court’s unjustified reliance upon any one § 3553(a) factor may be a

symptom of an unreasonable sentence. United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008). However, courts are still permitted to attach “great weight”

to one factor over others. Overstreet, 713 F.3d at 638. Further, in its consideration


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of the § 3553(a) factors, the district court does not need to discuss each factor

explicitly. Gonzalez, 550 F.3d at 1324. An acknowledgment that the district court

has considered both the defendant’s arguments and the § 3553(a) factors is

sufficient. Id.

      We lack jurisdiction to review a district court’s discretionary refusal to grant

a downward departure based on cultural assimilation pursuant to USSG § 2L1.2,

comment. (n.8), unless the court incorrectly believes that it lacked the authority to

depart from the guideline range. United States v. Dudley, 463 F.3d 1221, 1228

(11th Cir. 2006). Further, we will assume the court understood its authority absent

a record indication to the contrary. Id.

                                           III.

      We conclude from the record that Mareus’s 46-month sentence is

reasonable. He does not raise arguments of procedural unreasonableness, and he

fails to demonstrate substantive unreasonableness in light of the record and the

§ 3553(a) factors. First, the district court’s sentence represented the lowest end of

the applicable guideline range, and we ordinarily would expect such a sentence to

be reasonable. See Hunt, 526 F.3d at 746. This sentence also was well below the

20-year statutory maximum penalty. See Gonzalez, 550 F.3d at 1324. Moreover,

the 46-month sentence was needed to promote respect for the law, provide just

punishment, and deter Mareus from further criminality. See 18 U.S.C.


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§ 3553(a)(2). The district court questioned whether a probationary sentence, as

Mareus requested, would effectively deter him from returning to the United States

illegally, especially since he evaded capture for 14 years after his last reentry. The

court also noted that Mareus’s convictions, although imposed more than 15 years

ago, were for violent crimes involving drugs and firearms. In light of these

considerations, a custodial sentence within the guideline range would better serve

the goals set out in § 3553(a).

      In addition, while the district court cited Mareus’s criminal record as the

“primary motivation” for denying the variance request, [R. 30 at 25], it did not do

so to the detriment of all other § 3553(a) factors, see Overstreet, 713 F.3d at 638;

Pugh, 515 F.3d at 1191. The record clearly shows that the court acknowledged its

application of the § 3553(a) factors. It heard evidence on Mareus’s cultural

assimilation, his family’s presence in the United States, his work history, and the

temporal remoteness of his convictions. The court also stated it had considered all

arguments before issuing its decision. This serves as the court’s sufficient

acknowledgement of the defendant’s arguments and the § 3553(a) factors. See

Gonzalez, 550 F.3d at 1324. Mareus cannot ask us to reweigh the factors, absent a

clear error of judgment on the district court’s part. Irey, 612 F.3d at 1190.

      Finally, we may not review the district court’s discretionary refusal to grant

Mareus a downward departure based on cultural assimilation, pursuant to USSG


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§ 2L1.2, comment. (n.8). Mareus does not contend that the district court

misunderstood its authority to grant a downward departure. As the record does not

indicate otherwise, we will presume the district court understood its authority to

grant such departures, thus putting the court’s ruling outside of our jurisdiction.

Dudley, 463 F.3d at 1228.

                                         IV.

      For the foregoing reasons, we affirm Mareus’s sentence.

      AFFIRMED.




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