                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JULY 7, 2009
                             No. 08-16627                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 08-60193-CR-JIC

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JAVIER RAMOS-TIRSO,

                                                         Defendant-Appellant.


                       ________________________

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

                               (July 7, 2009)

Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:
       Javier Ramos-Tirso pled guilty in the district court to illegal re-entry into the

United States after deportation and removal, in violation of 8 U.S.C. § 1326(a) and

(b)(2), and the court sentenced him to a prison term of 46 months. He now appeals

his sentence, arguing that it is substantively unreasonable because a downward

variance from the Guidelines sentence range of 46 to 57 months would have been

sufficient to serve the purposes of sentencing, given the nature of his offense and

his family circumstances.

       We review a sentence imposed by the district court for reasonableness.

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Reasonableness

review requires the application of an abuse-of-discretion standard. Gall v. United

States, 552 U.S. 38, __, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). We

       must first ensure that the district court committed no significant
       procedural error, such as failing to calculate (or improperly
       calculating) the Guidelines range, treating the Guidelines as
       mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
       selecting a sentence based on clearly erroneous facts, or failing to
       adequately explain the chosen sentence-including an explanation for
       any deviation from the Guidelines range.

Id. at __, 128 S.Ct. at 597. If, as in this case, the district court’s sentencing

decision is procedurally reasonable, our analysis turns to the substantive

reasonableness of the sentence. Id.

       “In reviewing the ultimate sentence imposed by the district court for



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reasonableness, we consider the final sentence, in its entirety, in light of the

3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).

“We may find that a district court has abused its considerable discretion if it has

weighed the factors in a manner that demonstrably yields an unreasonable

sentence.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). “In this

Circuit, this Court presumes that a sentence within the guidelines [sentence] range

is reasonable, but the presumption may be rebutted by the circumstances of a

particular case viewed in light of the § 3553(a) factors.” United States v. Sarras,

No. 08-11757, manuscript op. at 57 (11th Cir. June 16, 2009). The expectation of

reasonableness ordinarily accorded to a sentence imposed within the sentence

range is tantamount to a rebuttable presumption of reasonableness. Id. at 55-56.

Moreover, we have held that comparing the sentence imposed against the statutory

maximum sentence is one indication of reasonableness. United States v. Valnor,

451 F.3d 744, 751-52 (11th Cir. 2006).

      Pursuant to § 3553(a), the sentencing court must impose a sentence

“sufficient, but not greater than necessary, to comply with the purposes set forth in

paragraph (2) of this subsection,” namely to reflect the seriousness of the offense,

promote respect for the law, provide just punishment for the offense, deter criminal

conduct, protect the public from future crimes of the defendant, and provide the



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defendant with needed educational or vocational training or medical care. See 18

U.S.C. § 3553(a)(2). The court must also consider the following factors in

determining a particular sentence: the nature and circumstances of the offense and

the history and characteristics of the defendant, the kinds of sentences available,

the sentencing guidelines range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwanted sentencing disparities, and the need to

provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

      Ramos-Tirso has not carried his burden of establishing that his sentence of

46 months, which was at the low-end of the Guidelines sentence range and well

below the statutory maximum of 20 years’ imprisonment, was substantively

unreasonable. The record shows that the district court considered his arguments

for a downward variance and had a reasoned basis for determining that a sentence

at the low-end sentence range was sufficient, but not greater than necessary, to

provide deterrence and just punishment.

      AFFIRMED.




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