           Case: 16-15425   Date Filed: 03/24/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15425
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:16-cr-60098-WPD-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JOSE RENE NUNEZ-ROBLES,

                                                         Defendant-Appellant.

                       ________________________

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

                             (March 24, 2017)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jose Nunez-Robles pleaded guilty to one count of reentry of a deported

alien. After granting him a one month downward departure, the district court

sentenced Nunez-Robles to 40 months in prison. He contends that his sentence

was substantively unreasonable.

      Taking into account Nunez-Robles’ acceptance of responsibility and prior

felony conviction for possession with intent to distribute, the presentence

investigation report in this case indicated that his advisory guideline range was 41

to 51 months in prison. Nunez-Robles did not dispute that calculation. Instead, he

requested a downward departure based on his “cultural assimilation” under

U.S.S.G. § 2L1.2 cmt. n.9 (2015) and a downward variance based on the factors

listed in 18 U.S.C. § 3553(a).

      In support of his request for a downward departure and downward variance,

Nunez-Robles indicated that he was originally brought to the United States at the

age of seven (he was thirty-six at the time of sentencing). He went to school in

America before dropping out after the 11th grade, married a United States citizen,

and had two children with her. He resided continuously in the United States until

he was first deported in February 2008. His family and friends are in this country.

Nunez-Robles also pointed out that he re-entered the United States to reunite with

his family and that his offense amounted to “at most, an international trespass.”

He argued that he was not a danger to the community, had been working, and


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would be adequately deterred from future illegal conduct by a sentence of 24

months in prison.

      The district court granted his request for a downward departure, but only

departed from the advisory guideline range by one month, sentencing Nunez-

Robles to 40 months in prison instead of 41. He appeals. He contends that his

sentence was substantively unreasonable because the district court should have

departed or varied further downward based upon his strong ties to the United States

and the § 3553(a) factors. We disagree.

      Initially, to the extent Nunez-Robles seeks to challenge the reasonableness

of the district court’s downward departure standing alone, he cannot do so. “This

Court lacks jurisdiction to review a district court’s discretionary refusal to grant a

downward departure, unless the district court incorrectly believed that it lacked the

statutory authority to depart from the guideline range.” United States v. Norris,

452 F.3d 1275, 1282 (11th Cir. 2006). If we lack jurisdiction to consider whether

the district court erred by refusing to grant any departure, it follows that we lack

jurisdiction to consider whether it should have granted a bigger one. As a result,

we consider only Nunez-Robles’ contention that his sentence as a whole, including

the downward departure, was substantively unreasonable.

      We review the substantive reasonableness of the district court’s sentence for

an abuse of discretion, Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597


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(2007), and “[t]he party challenging the sentence bears the burden to show it was

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). “[W]e are to vacate the

sentence if, but only if, we are left with 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.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir.

2010) (en banc) (quotation marks omitted).

       “In general, the district court is not required to state on the record that it has

explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors. . . . It is sufficient that the district court considers the

defendant’s arguments at sentencing and states that it has taken the § 3553(a)

factors into account.” United States v. Sanchez, 586 F.3d 918, 967 (11th Cir.

2009) (quotation marks and citation omitted). “Although we do not automatically

presume a sentence within the guidelines range is reasonable, we ordinarily . . .

expect a sentence within the [g]uidelines range to be reasonable.” United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (quotation marks omitted) (first

alteration in original).

       In this case, the district court expressly stated that it considered the

§ 3553(a) factors. And its consideration of a couple of the factors is apparent from


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the record of the sentence hearing. During the course of the government’s

argument, the district court made clear that it did not think much weight should be

given to several of Nunez-Robles’ prior arrests because he ultimately was not

convicted on those charges. See 18 U.S.C. § 3553(a)(1) (requiring the district

court to consider “the history and characteristics of the defendant”). He also

considered the nature of Nunez-Robles’ past convictions. See id. He considered

Nunez-Robles’ ability to pay the fines that he imposed. See id. § 3553(a)(2)

(requiring the district court to consider “the kinds of sentences available”). And he

clearly considered the mitigating evidence concerning Nunez-Robles’ “cultural

assimilation” in the United States, because he granted a downward departure, even

though he determined that “not much of one” was appropriate. See id.

§ 3553(a)(1).

      We cannot say that the district court made a “clear error in judgment” by

balancing the factors as he did, regardless of whether we would have struck the

same balance ourselves. Gall, 552 U.S. at 51, 128 S. Ct. at 597 (“The fact that the

appellate court might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.”); Irey, 612 F.3d

at 1190. This is especially so in light of the fact we “expect a sentence” below “the

[g]uidelines range to be reasonable,” even if we do not “presume” that it is. See




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Hunt, 526 F.3d at 746 (quotation marks omitted). As a result, the district court’s

sentence was not substantively unreasonable.

      AFFIRMED.




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