             Case: 13-10162   Date Filed: 11/06/2013   Page: 1 of 6


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-10162
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:12-cr-20580-KMM-6

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

SANJAY JOHNSON,

                                                           Defendant-Appellant,

                         ________________________

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

                              (November 6, 2013)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Sanjay Johnson appeals his 30-month sentence after pleading guilty to one

count of illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal,

Johnson argues that his sentence was substantively unreasonable in light of the
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factors set forth in 18 U.S.C. § 3553(a), and should be less because he will not be

entitled to participation in a drug treatment program or other benefits, because he is

not a U.S. citizen.

                                           I.

      Johnson is a Jamaican national who was deported on September 9, 2010,

following two drug convictions and violations of his probation. On July 21, 2012,

U.S. Customs and Border Patrol stopped a vessel carrying several foreign

nationals, including Johnson, attempting to enter the U.S. The following month,

Johnson was indicted for illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2),

and pled guilty.      In determining his sentence, the district court considered a

presentence investigation report (PSI) which determined that Johnson’s base

offense level was 8, and that base was raised by 12 levels because he was

unlawfully returning after conviction for a felony drug offense for which the

sentence imposed was 13 months or less. See USSG § 2L1.2. Additionally,

Johnson’s offense level was reduced because he accepted responsibility for his

offense and because the government filed a motion stating that he assisted

authorities by timely notifying them of his intention to plead guilty.          After

determining Johnson’s offense level to be 17, the PSI detailed his criminal history,

including several convictions and revoked probation, and assigned a criminal

history level III. With a total offense level of 17 and criminal history of III,


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Johnson’s advisory sentencing guidelines range was 30-37 months imprisonment,

and the statutory range was 0 to 20 years imprisonment.              Johnson filed a

memorandum seeking a deviation from the applicable guideline based upon the 18

U.S.C. § 3553(a) factors. Specifically, Johnson argued that he was ineligible for

the drug treatment program and halfway house because he was not a citizen and

would be transferred to an immigration detention facility following his release.

Thus, Johnson argued that he should have his sentence reduced because of this

disparity caused by his ineligibility for these programs.

      Following a hearing, the district court explained that the fact that Johnson

could not reap the benefit of a drug treatment program or halfway house was the

result of the nature of the offense because he was a non-citizen. Indeed, as U.S.

citizens cannot be convicted of illegal reentry, these are not benefits that citizens

received that non-citizens could not receive. The district court sentenced Johnson

to 30 months imprisonment, and he was instructed to surrender to immigration

authorities after imprisonment. This appeal ensued.

                                           II.

      We review the reasonableness of a sentence for abuse of discretion and

reverse only if the district court is shown to have made clear error. Gall v. United

States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The party challenging the

sentence bears the burden of proving the sentence is unreasonable. United States v.


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Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).               In determining substantive

reasonableness, we examine the totality of the circumstances, including an

evaluation of whether the factors in § 3553(a) support the sentence. United States

v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). The district court shall impose

a sentence “sufficient, but not greater than necessary to comply with the purposes”

of § 3553(a)(2), which include the need to reflect the seriousness of the offense, to

promote respect for the law, and to deter the criminal conduct. Id. The court shall

also consider the circumstances of the offense and the history and characteristics of

the defendant, as well as the sentencing range. 18 U.S.C. §§ 3553(a)(1), (a)(4).

We ordinarily expect that a sentence falling within the guidelines range will be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

                                          III.

      On appeal, Johnson reiterates that a sentencing court must consider the

guidelines range in light of other statutory concerns. See United States v. Booker,

125 S. Ct. 738, 756 (2005). Johnson repeats his argument that because he is not a

U.S. citizen, he will not be able to attend a drug treatment program while

incarcerated and thereby reduce his sentence, and upon release, he will be

transferred to a detention facility. Johnson insists that this represents disparate

treatment and should be considered in reducing his sentence.          See 18 U.S.C.

§ 3553(a)(6) (emphasizing “the need to avoid unwarranted sentence disparities


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among defendants with similar records who have been found guilty of similar

conduct”).

      In response, the government insists that Johnson’s sentence is substantively

reasonable. The district court explicitly addressed the § 3553(a) factors, explaining

that Johnson’s extensive criminal history, including distribution of narcotics and

use of firearms, justified his sentence.      Further, the sentence is presumed

reasonable because it is at the bottom of the guidelines range and was supported by

the nature of the circumstances. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Third, in

response to Johnson’s argument that he will serve a longer sentence due to being

denied entry into a drug treatment program and halfway house, the government

cites a case in which we rejected a similar argument. United States v. Caiceda,

224 Fed. Appx. 947, 949 (11th Cir. 2007) (“[T]he record reflects [that] the court

properly considered the purposes of sentencing as reflected in 18 U.S.C. § 3553(a),

and all of [petitioner’s] arguments, including the argument that he might not

qualify for certain benefits because of his non-citizen status.”).       Finally, the

government argues that Johnson’s 30-month sentence is substantially lower than

the 20 year statutory maximum for which he was eligible. See Gonzalez, 550 F.3d

at 1324 (11th Cir. 2008) (noting that one indication of the reasonableness of

defendant’s sentence was that it was “well below” the applicable statutory

maximum).


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      Upon review, it is evident that Johnson’s 30-month sentence is substantively

reasonable in light of the § 3553(a) factors and circumstances. See id. at 1323–24.

His sentence is on the low end of the advisory guideline range. See Hunt, 526 F.3d

at 746. In addition, the district court considered Johnson’s prior criminal history

including his drug and firearm offenses, and violation of his probation. Further,

Johnson’s argument that he will not be entitled to certain sentence-reducing

programs because he is not a citizen is unavailing, as the nature of his crime

definitionally applies only to non-citizens. Based on these considerations, the

district court did not abuse its discretion in imposing a 30-month sentence. Thus,

upon review of the record and consideration of the parties’ briefs, we affirm

Johnson’s sentence.

AFFIRMED.




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