           Case: 16-17569   Date Filed: 06/29/2017   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17569
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:16-cr-00019-WCO-JCF-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

GALDINA PEREZ-PINEDA,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 29, 2017)

Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Galdina Perez-Pineda appeals her 12-month sentence, imposed after

pleading guilty to one count of illegal reentry by a deported alien, in violation of

8 U.S.C. § 1326(a) and (b)(1). Perez-Pineda entered the United States for the first

time in 2001, was granted 14 voluntary returns, and was deported in 2012

following a felony conviction. She reentered the U.S. illegally in 2015 and was

arrested by law enforcement in 2016. Perez-Pineda was transferred to the custody

of Immigration and Customs Enforcement (“ICE”) for more than two months

before being transferred to the custody of the U.S. Marshals for proceedings

related to the instant offense. On appeal, Perez-Pineda argues that her sentence is

substantively unreasonable, where the court declined to apply a downward

departure to credit her time served in ICE custody and failed to consider that the

12-month sentence would make her ineligible for early release for good behavior.

      We review the substantive reasonableness of a sentence for abuse of

discretion, considering the totality of the circumstances. Gall v. United States, 552

U.S. 38, 51 (2007). The party challenging the sentence bears the burden to show it

is unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      We generally do not review the merits of a district court’s refusal to grant a

downward departure, but we may review de novo a defendant’s claim that the

district court mistakenly believed it lacked the authority to grant such a departure.


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United States v. Mignott, 184 F.3d 1288, 1289 (11th Cir. 1999). When nothing in

the record indicates otherwise, we will assume that the district court understood it

had the authority to depart downward, precluding jurisdiction to review those

claims. United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999).

       A district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in § 3553(a)(2), 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). In imposing its

sentence, the district court must also consider, among other factors, the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, and the applicable guideline range. Id. § 3553(a)(1),

(3)-(4).

       The weight accorded to any given § 3553(a) factor is a matter committed to

the sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007). However, a district court abuses its discretion when it (1) fails to

afford consideration to relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment in considering the proper factors. United States v. Irey, 612 F.3d

1160, 1189 (11th Cir. 2010) (en banc). Furthermore, a district court’s unjustified


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reliance on any one § 3553(a) factor to the detriment of all the others may be a

symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285,

1292 (11th Cir. 2006).

      Although we do not automatically presume a sentence 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 reasonableness. See United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Under the Guidelines, a

district court may grant a downward departure to a defendant convicted of

unlawfully entering the U.S. on the basis of time served in state custody. U.S.S.G.

§ 2L1.2, comment. (n.6).

      As an initial matter, we do not have jurisdiction to review the merits of the

district court’s refusal to grant the downward departure for time served in ICE

custody because the record reflects that the court understood its authority to grant

the departure. See Mignott, 184 F.3d at 1289; Chase, 174 F.3d at 1195.

      Perez-Pineda has not shown that her sentence is substantively unreasonable

because the court considered the § 3553(a) factors, such as her history of repeated

voluntary departures, the need to impose a sentence that acts as a deterrent and

promotes respect for the law, the kinds of sentences available, and the sentencing

range. See 18 U.S.C. § 3553(a)(1)-(4). Further, Perez-Pineda’s 12-month sentence


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was within the guideline range and well below the statutory maximum penalty of

120 months’ imprisonment, two indicators of a reasonable sentence. See 8 U.S.C.

§ 1326(b)(1); Hunt, 526 F.3d at 746; Gonzalez, 550 F.3d at 1324. Finally, Perez-

Pineda does not cite to any authority to support her contention that the court’s

failure to consider whether she would be eligible for a good-behavior reduction

made her sentence unreasonable. Because she has not established that the court

improperly weighed the sentencing factors, committed a clear error of judgment, or

unjustly relied on one factor to the detriment of all the others, she has not shown

that the court abused its discretion. See Irey, 612 F.3d at 1189; Crisp, 454 F.3d at

1292. Accordingly, we affirm.

      AFFIRMED.




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