                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT  OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JUNE 29, 2012
                             No. 11-14328
                         Non-Argument Calendar               JOHN LEY
                                                              CLERK
                       ________________________

                  D.C. Docket No. 1:11-cr-20123-JLK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus

ARMANDO VILLATORO-REYES,
a.k.a. Jorge Moreno,
a.k.a. Teodoro Osorio-Martinez,
a.k.a. Carlos Reyes,
a.k.a. Hernanan Valdez,
a.k.a. Franklin Reyes,

                                                         Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________
                              (June 29, 2012)
Before EDMONDSON, CARNES and FAY, Circuit Judges.

PER CURIAM:

      Armando Villatoro-Reyes, who was convicted after he pleaded guilty to

illegally reentering the United States after deportation for an aggravated felony,

appeals his 70-month prison sentence, contending that it is substantively

unreasonable.

                                           I.

      Villatoro-Reyes was deported from the United States in 1996 because he

had been convicted in California of possession for sale of cocaine base, an

aggravated felony. He reentered the United States in 1998 through Miami,

Florida. In 2011 he was arrested by deportation officers and indicted by a federal

grand jury for illegally reentering the United States after deportation for an

aggravated felony. See 8 U.S.C. § 1326(a), (b)(2). He pleaded guilty to that

charge without a written plea agreement.

      The presentence investigation report recommended a base offense level of 8

under United States Sentencing Guidelines § 2L1.2(a) (Nov. 2010). It added 16

levels under § 2L1.2(b)(1)(A) because Villatoro-Reyes was deported after being

convicted of a drug trafficking offense for which the sentence imposed exceeded

13 months, and it subtracted 3 levels for acceptance of responsibility under §

                                           2
3E1.1. The result was a recommended total offense level of 21.

      The PSR reviewed Villatoro-Reyes’ extensive criminal history, which

included convictions for driving under the influence, battery, sale or transportation

of a controlled substance (twice), possession for sale of cocaine base (twice),

prison escape without force, driving without a valid driver’s license (three times),

and resisting an officer without violence. His criminal history also included

additional arrests for burglary of an occupied conveyance, driving without a valid

driver’s license, DUI, and possession of a controlled substance. The PSR

calculated a total of 11 criminal history points and recommended a criminal

history category of V.

      With a total offense level of 21 and a criminal history category of V, the

applicable guidelines range was 70–87 months imprisonment. The statutory

maximum sentence for reentering the United States after deportation for an

aggravated felony is 20 years. See 8 U.S.C. § 1326(b)(2).

      Villatoro-Reyes did not object to the calculation of the guidelines range, but

he asked for a below-the-guidelines sentence of 30 months. He argued that his

conviction of possession for sale of cocaine base was “getting double scored”

because it was used for the U.S.S.G. § 2L1.2(b)(1)(A) enhancement and also

counted toward his criminal history points. He argued that, based on the nature

                                          3
and circumstances of his offense, his history and characteristics, his lack of

“scorable” offenses since the mid-1990s, the “flawed nature” of § 2L1.2, and the

other 18 U.S.C. § 3553(a) factors, a sentence of 30 months was reasonable. The

government requested a sentence at the bottom of the guidelines range.

      The district court pointed out that Villatoro-Reyes had recent arrests, one

for a controlled substance violation in 2001 and one for a burglary violation in

2007. It then said: “If he is committing crimes, some of them pretty serious, I

have a little difficulty with a variance.” The court also stated that “under the

circumstances, the provisions of 18 U.S.C. § 3553, in consideration of those

factors and the argument of counsel, the briefs and memorandum . . . that a

sentence within the guidelines is the appropriate sentence to effectuate a fair and

just sentence.” It sentenced Villatoro-Reyes to 70 months imprisonment and 3

years supervised release.

                                          II.

      Villatoro-Reyes contends that his sentence is substantively unreasonable

because the district court did not properly weigh the 18 U.S.C. § 3553(a) factors.

We apply an abuse of discretion standard in reviewing a sentence. United States

v. White, 663 F.3d 1207, 1215 (11th Cir. 2011). Our substantive reasonableness

review is guided by the factors in 18 U.S.C. § 3553(a). Id. at 1217. The district

                                          4
court is required to impose a sentence that is “sufficient, but not greater than

necessary, to comply with the purposes” listed in that statutory provision. 18

U.S.C. § 3553(a). Those purposes include the need to reflect the seriousness of

the offense, promote respect for the law, provide just punishment of the offense,

deter criminal conduct, protect the public from the defendant’s future criminal

conduct, and provide the defendant with needed educational or vocational training

or medical care. Id. § 3553(a)(2). Among other factors, the district court must

also consider the nature and circumstances of the offense, the history and

characteristics of the defendant, the applicable guidelines range, and the need to

avoid unwarranted sentencing disparities. See id. § 3553(a)(1), (4), (6).

      The burden of establishing that a sentence is unreasonable lies with the

party challenging it. White, 663 F.3d at 1217. We will vacate a sentence for

substantive unreasonableness “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).

      Villatoro-Reyes has not demonstrated that his sentence is substantively

unreasonable. His 70-month sentence is inside the guidelines range, and

                                          5
“although we do not automatically presume a sentence within the guidelines range

is reasonable, we ordinarily expect a sentence within the Guidelines range to be

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

and quotation marks omitted). His sentence is also well below the statutory

maximum prison term of 20 years, see United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008) (holding that a defendant’s sentence was reasonable in part

because it was well below the statutory maximum), and the record shows that the

court considered the § 3553(a) factors and Villatoro-Reyes’ argument for a below-

the-guidelines sentence. See United States v. Scott, 426 F.3d 1324, 1329 (11th

Cir. 2005) (holding that a 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”).1

       AFFIRMED.




       1
         To the extent Villatoro-Reyes argues that the district court engaged in double counting
by using a prior conviction for both the U.S.S.G. § 2L1.2 enhancement and for calculating his
criminal history category, we reject that argument. Double counting is permitted if the
Sentencing Commission intended that result and the two guidelines sections serve different
purposes. United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992). Criminal history
categories punish recidivists, and § 2L1.2(b)(1)(A) deters aliens from reentering the country after
committing felonies. Id.

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