                                                                   [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        MAY 23, 2012
                                            No. 11-14476
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                           D.C. Docket No. 2:11-cr-00015-WCO-SSC-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellee,

                                                versus

RAMIRO HERNANDEZ-GARRIDO,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellant.

                                     ________________________

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

                                           (May 23, 2012)

Before MARCUS, WILSON and BLACK, Circuit Judges.

PER CURIAM:
      Ramiro Hernandez-Garrido appeals his 35-month sentence imposed after he

pled guilty to one count of re-entry of a deported alien, in violation of 8 U.S.C. §

1326(a), (b)(2). He argues that his sentence, which was within the guidelines

range for his offense, was substantively unreasonable in light of the 18 U.S.C. §

3553(a) factors. After careful review, we affirm.

                                          I.

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

discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). A sentence is substantively unreasonable if, considering the

totality of the circumstances, the court weighed the § 3553(a) factors unreasonably

and imposed a sentence that did not achieve the purposes of sentencing outlined in

§ 3553(a). United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc),

cert. denied, 131 S. Ct. 1813 (2011). We will vacate a sentence only if we have

“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.” Id. at

1990 (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).

      The district court must impose a sentence that is “sufficient, but not greater

than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a),

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including 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). The district 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 guidelines range, the pertinent policy statements issued

by the Sentencing Commission, the need to avoid unwarranted sentencing

disparities, and the need to provide restitution to victims. Id. § 3553(a)(1),

(3)–(7).

      A party who challenges his sentence bears the burden to show that it is

unreasonable in light of the record and the § 3553(a) factors. United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010), cert. denied, 131 S. Ct. 674 (2010).

Although we do not automatically presume that a sentence falling within the

guidelines range is reasonable, we ordinarily expect it to be. United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

                                          II.

      Hernandez-Garrido’s 35-month sentence is within the guidelines range and

well below the 20-year statutory maximum penalty for his offense. See United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam) (taking into

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account that a sentence was well below the statutory maximum when determining

that sentence was substantively reasonable). However, Hernandez-Garrido argues

that there are two reasons why a lower sentence should have been imposed.

      First, Hernandez-Garrido points out that he received a 12-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(B) even though the district court was aware that §

2L1.2 was scheduled to be amended. Hernandez-Garrido argues that had he been

sentenced six weeks later under the amended guidelines, he would have only

received an 8-level enhancement. That would have made his applicable guidelines

range 18 to 24 months. Although Hernandez-Garrido concedes that the

amendment to § 2L1.2 was not retroactive, he contends that the Supreme Court’s

reasoning in Kimbrough v. United States instructs that the district court

nevertheless should have reduced his sentence. 552 U.S. 85, 128 S. Ct. 558

(2007). We disagree.

      In Kimbrough, the district court sentenced a defendant to a below-

guidelines sentence for his crack and powder cocaine related offenses and

commented that the case exemplified the “disproportionate and unjust effect that

crack cocaine guidelines have in sentencing.” Id. at 93, 128 S. Ct. at 565 (quoting

district court). The appellate court found that the district court committed an

abuse of discretion in granting the downward variance. However, the Supreme

                                          4
Court found relevant the unique history of the sentencing guidelines for crack and

powder cocaine offenses. The Court commented that in formulating the guidelines

ranges for crack cocaine offenses, “the [Sentencing] Commission . . . did not take

account of empirical data and national experience.” Id. at 109, 128 S. Ct. at 575

(quotation marks and citation omitted). The Court also pointed out that “the

Commission itself has reported that the crack/powder disparity produces

disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses

‘greater than necessary’ in light of the purposes of sentencing set forth in §

3553(a).” Id. at 110, 128 S. Ct. at 575. The Court then determined that, “[g]iven

all this, it would not be an abuse of discretion for a district court to conclude when

sentencing a particular defendant that the crack/powder disparity yields a sentence

‘greater than necessary’ to achieve § 3553(a)’s purposes.” Id.

      Hernandez-Garrido argues that at the time of his sentencing, § 2L1.2 was an

equally unfair sentencing provision that lacked grounding in empirical data.

However, even if Hernandez-Garrido’s contention were correct, that would still

not support reversal of his sentence. The Court in Kimbrough found that it was

not an abuse of discretion for a district court to grant a below-guidelines sentence

under the circumstances of that case. In no way does that holding compel—or

even allow—a conclusion that under the same circumstances, it would have been

                                          5
an abuse of discretion for the district court to grant a sentence within the

guidelines.

        Next, Hernandez-Garrido contends that his sentence was unreasonable

given his “modest criminal history aside from [his] 1992 drug conviction,” his

history of working to support his family, and the motivation for his illegal re-entry

to the United States—a desire to provide for his family. He also claims that the

district court gave too much weight to the fact that he appropriated his brother’s

identity. Hernandez-Garrido contends that the manner in which he misused his

brother’s identity was “less aggravated in nature” than the government asserted

and that he has manifested no intent to continue using the fraudulent identity. The

district court in determining Hernandez-Garrido’s sentence heard these arguments;

it also reviewed the Pre-sentence Investigation Report, considered all of the

relevant circumstances of Hernandez-Garrido’s case and background, and weighed

the § 3553(a) factors. Because Hernandez-Garrido has failed to show that the

district court committed an abuse of discretion in the weighing of those § 3553(a)

factors, we affirm the district court.

      AFFIRMED.




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