                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-13825                ELEVENTH CIRCUIT
                                                           FEBRUARY 13, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 08-10003-CR-KMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ISMAEL PEDROSA-GARCIA,

                                                          Defendant-Appellant.


                        ________________________

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

                              (February 13, 2009)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Ismael Pedrosa-Garcia (“Pedrosa-Garcia”) appeals his forty-eight month
sentence following his convictions on one count of conspiracy to commit alien

smuggling in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (“Count One”) and one

count of failure to heave to a government law enforcement vessel in violation of 18

U.S.C. § 2237(a)(1) (“Count Two”). Pedrosa-Garcia argues that his sentence was

unreasonable because the district court impermissibly considered his pending state

manslaughter charge and imposed a sentence above his guideline range. We

conclude that the district court correctly considered Pedrosa-Garcia’s guideline

range, the requisite statutory factors, the nature and circumstances of his

convictions and his prior conviction for failure to heave to a government vessel in

fashioning the sentence imposed. Accordingly, we find that the sentence was

reasonable. AFFIRMED.

                                   I. BACKGROUND

       On 10 January 2008, the United States Coast Guard cutter Drumond

detected a go-fast boat1 operating without navigation lights, traveling southbound

from Florida towards Cuba. R2-54 at 11. The Drumond closed within 100 yards

of the vessel and commanded it to stop in both English and Spanish. The go-fast

boat ignored the command, increased speed and attempted to evade interdiction,

nearly colliding with the Drumond in the process. An hour-long pursuit ensued


       1
        A “go-fast boat” is an exceptionally swift, high-performance vessel commonly used by
smugglers.

                                              2
after which the go-fast boat was finally apprehended. Pedrosa-Garcia admitted to

being the driver of the boat. Id. at 11-12.

      Pedrosa-Garcia’s guideline range was calculated at between ten and sixteen

months, based upon a total offense level of 10 and a criminal history category of

III. R3-55 at 2. He faced a statutory imprisonment term of zero to ten years for

Count One and zero to five years for Count Two. In addition, just prior to his

sentencing for Counts One and Two, Pedrosa-Garcia had received a twenty-four

month sentence for violating his supervised release conditions in a previous

conviction for failure to heave to a government law enforcement vessel.

      At Pedrosa-Garcia’s sentencing hearing, the district court considered the

advisory guideline range along with the statutory factors as set out in 18 U.S.C.

§ 3353(a). The court specifically noted the fact that Pedrosa-Garcia’s instant

offense occurred only six months into his supervised release term for a prior failure

to heave to a government law enforcement vessel. The district court commented:

      Well, I remember. It was one of the few cases, it seems to me, that I
      recall giving the defendant the benefit of the doubt on just a straight
      failure to heave to a law enforcement vessel. And we just gave him
      the time served because there was no other evidence that he was
      engaged in any other kind of smuggling violation. So we kind of gave
      him the benefit of the doubt, which in retrospect maybe it wasn’t such
      a smart idea.

Id. at 4. After listening to his petition for leniency, the district court asked about



                                              3
the status of a pending manslaughter charge against Pedrosa-Garcia. The court

was informed that the manslaughter charge was an open case in state court. Id. at

7. The district court made no further inquiries on the subject.

      The court then highlighted the fact that Pedrosa-Garcia’s “efforts to ram the

Coast Guard vessel . . . put the crew and his passenger in great danger” and

concluded as follows:

             We’re here to consider the sentence to reflect the seriousness of
      the offense, promote respect for the law, provide just punishment for
      the offense, as well as to afford adequate deterrence. We have noted
      that this is the second offense after he was given a break the first time
      around. At least, I considered it to be something of a lenient sentence.
             So I think it warrants a sentence above the advisory guidelines
      in order to reflect the seriousness of the offense and to promote
      respect for the law, provide just punishment and deterrence.

Id. at 8-9. The district court imposed a sentence of forty-eight months of

imprisonment for both Counts One and Two, to be served concurrently, but

consecutive to the twenty-four month term imposed for the prior supervised release

violation. After the announcement of the sentence, Pedrosa-Garcia objected to the

imposition of a sentence above the advisory guideline range. Id. at 10.

                                 II. DISCUSSION

      We review a sentence imposed by a district court, both as to its procedural

propriety and substantive reasonableness, under an abuse of discretion standard.

See United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we

                                          4
      must . . . 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 § 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. (quotation marks and citation omitted). As we have noted before, the sentencing

court need not “state on the record that it has explicitly considered each of the

§ 3553(a) factors or discuss each of the § 3553(a) factors.” United States v. Ortiz-

Delgado, 451 F.3d 752, 758 (11th Cir. 2006) (quotation marks and citation

omitted). However, when a “judge imposes a sentence outside the Guidelines, the

judge will explain why he has done so” and “ensure that the justification is

sufficiently compelling to support the degree of the variance.” United States v.

Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotation marks and citation

omitted).

      After determining that the sentence imposed is procedurally sound, we then

consider whether the sentence is substantively reasonable. See Pugh, 515 F.3d at

1190. “In considering the substantive reasonableness of the sentence, we may not

apply a presumption of unreasonableness where a sentence is outside of the

Guidelines range, and we must give deference to the district court’s decision that

the § 3553(a) factors, on a whole, justify the extent of the variance.” Livesay, 525



                                           5
F.3d at 1090 (quotation marks and citation omitted). As we have said before,

“courts of appeal must review all sentences – whether inside, just outside, or

significantly outside the Guidelines range – under a deferential abuse-of-discretion

standard.” Id. at 1090 (quotation marks and citation omitted). We are also mindful

of the fact that “a sentence can be unreasonable . . . if the district court’s selection

of the sentence was substantially affected by its consideration of impermissible

factors.” United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006),

abrogated on other grounds by United States v. Kimbrough, __ U.S. __, 128 S. Ct.

558, 574 (2007) (footnote omitted). In the end, we look to whether “[t]he

sentencing judge . . . set forth enough to satisfy [us] that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, __, 127 S. Ct.

2456, 2468 (2007).

       In this case, we are convinced that the sentence imposed by the district court

was procedurally and substantively sound. The court correctly considered the

advisory guideline range along with the requisite § 3353(a) factors. It then

highlighted the fact that Pedrosa-Garcia’s instant offense occurred only six months

into his supervised release term for the same offense. The district court noted that

it had given Pedrosa-Garcia the benefit of the doubt the first time around and



                                            6
expressed its concern that Pedrosa-Garcia again was before the court convicted of

the same offense. Moreover, the district court gave ample consideration to the

nature and circumstances of the instant offense, noting that Pedrosa-Garcia’s

actions put the lives of his passenger and the crew of the Drummond in great

danger. Given the scope of our deferential standard of review and the district

court’s reasoned basis for exercising its decisionmaking authority, we conclude

that the sentence imposed by the district court was not unreasonable.

      Finally, we find no merit in the contention that the district court considered

an impermissible factor in fashioning Pedrosa-Garcia’s sentence. The court merely

noted the existence of a pending manslaughter charge in Pedrosa-Garcia’s

presentence investigation report (“PSI”) and asked about the status of the case.

When informed that it was an open case in state court, the district court made no

further inquires. Nothing in the record supports the notion that the district court

impermissibly considered the manslaughter charge when crafting Pedrosa-Garcia’s

sentence.

                                III. CONCLUSION

      Pedrosa-Garcia appeals his forty-eight month sentence following his

convictions on one count of conspiracy to commit alien smuggling and one count

of failure to heave to a government law enforcement vessel. We conclude that the



                                           7
district court correctly considered Pedrosa-Garcia’s guideline range, the requisite

statutory factors, the nature and circumstances of his convictions and his prior

conviction for failure to heave to a government vessel in fashioning the sentence

imposed. Accordingly, we find that the sentence was reasonable.

      AFFIRMED.




                                          8
