                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________             FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14231         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        APRIL 22, 2011
                                      ________________________        JOHN LEY
                                                                        CLERK
                           D.C. Docket No. 8:10-cr-00074-RAL-AEP-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

VICTOR ANTONIO MANZANO-HERNANDEZ,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (April 22, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

         Victor Antonio Manzano-Hernandez appeals his 72-month sentence,

imposed after he pleaded guilty to illegal reentry after deportation in violation of 8
U.S.C. § 1326. On appeal, Manzano-Hernandez argues that his sentence was

procedurally unreasonable because the district court did not adequately explain the

sentence. He also argues that the sentence was substantively unreasonable

because the court relied too heavily on his criminal history, which was already

accounted for in his guideline range of 21-27 months, when it imposed an upward

variance and 72-month sentence. We affirm.

      Manzano-Hernandez first entered the United States illegally in 1996 and

was ultimately ordered removed. He illegally reentered and was later arrested for

driving under the influence in 2002. Following his removal, he again reentered

and was arrested for driving under the influence in 2003 and domestic battery in

2005. He was removed in 2007. In June 2009, Manzano-Hernandez illegally

reentered and was arrested the following year for driving under the influence.

      Manzano-Hernandez was charged with and pleaded guilty to one count of

illegal reentry after deportation. The district court calculated his sentencing

guideline range as follows: Under U.S.S.G. § 2L1.2, the base offense level was

eight. There was a four-level enhancement under § 2L1.2(b)(1)(D) because

Manzano-Hernandez had been previously deported, and a two-level reduction for

acceptance of responsibility. Based on his prior reentries and driving-under-the-

influence offenses, Manzano-Hernandez had a lengthy criminal history, which

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placed him in category V. He also had numerous other convictions which were

not counted in his criminal history calculations. The resulting guideline range was

21 to 27 months. The government requested an upward variance; Manzano-

Hernandez requested a sentence within the guideline range.

      The district court noted that Manzano-Hernandez had been imprisoned for

fifteen months, the top end of the guideline range, following his prior illegal

reentry and that he had quickly returned to the United States after completion of

his supervised release. After considering the guideline range, the statutory factors

in 18 U.S.C. § 3553(a), and the parties’ arguments, the court determined that an

upward variance from the guideline range was necessary to meet the goals of

sentencing. Finding that a sentence at the top end of the guideline range had been

no deterrent previously, the court sentenced Manzano-Hernandez to 72 months’

imprisonment. Manzano-Hernandez objected to the sentence and now appeals on

the ground that his sentence is procedurally and substantively unreasonable.

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

discretion standard. United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010)

(en banc), pet. for cert. filed (U.S. Nov. 24, 2010) (No. 10-727). We will only

vacate a sentence 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)

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factors by arriving at a sentence that lies outside the range of reasonable sentences

dictated by the facts of the case.” Id. at 1190 (quotation omitted).

      In reviewing the reasonableness of a sentence, we conduct a two-step

review, first ensuring that the sentence was procedurally reasonable, meaning the

district court properly calculated the guideline range, treated the guideline range as

advisory, considered the § 3553(a) factors, did not select a sentence based on

clearly erroneous facts, and “adequately explain[ed] the chosen sentence.” Gall v.

United States, 552 U.S. 38, 51 (2007). “A district court’s unjustified reliance on a

single § 3553(a) factor may be a ‘symptom’ of an unreasonable sentence.” United

States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). But it is within the

district court’s discretion to determine how much weight to give to each § 3553(a)

factor, and where the court has explained why it “attached great weight to one

factor,” we have held the sentence to be reasonable. Id. at 1323.

      Once we determine that a sentence is procedurally sound, we must examine

whether the sentence was substantively reasonable in light of the record and the

§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

The district court is required to impose a sentence that is “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

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respect for the law, provide just punishment for the offense, adequately deter

criminal conduct, protect the public from the defendant’s future criminal conduct,

and provide the defendant with needed educational or vocational training or

medical care. 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 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).

      When reviewing a sentence outside of the guideline range, we “may not

apply a presumption of unreasonableness.” Gall, 552 U.S. at 51. We “may

consider the extent of the deviation, but must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.” Id. The party challenging the sentence has the burden of establishing

that the sentence was unreasonable. Talley, 431 F.3d at 788.

      We conclude that Manzano-Hernandez’s 72-month sentence was both

procedurally and substantively reasonable. The district court properly calculated

the guideline range, treated that range as advisory, stated that it needed to impose

a sentence that met the § 3553(a) factors, and explained which factors most

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influenced its decision to impose an upward variance. The court explained that

because of Manzano-Hernandez’s criminal history and recidivism, it relied most

heavily on the prior conduct, the need to protect the public from future crimes, and

the need for deterrence.

      We further conclude that Manzano-Hernandez’s sentence was substantively

reasonable. Manzano-Hernandez had been convicted for driving under the

influence four times, he had been deported from the United States twice, and was

before the court on his second conviction for illegal reentry. Furthermore, his last

sentence for illegal reentry was at the high-end of the guideline range, and yet he

committed this illegal reentry less than a year after his supervised release in that

case ended. The upward variance was thus justified by his criminal history and the

lack of deterrence from the previous sentence. We cannot say that the court

abused its discretion in this case.

      AFFIRMED.




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