              Case: 11-14969     Date Filed: 10/24/2012   Page: 1 of 8

                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________

                                 No. 11-14969
                             Non-Argument Calendar
                           ________________________

                   D. C. Docket No. 2:10-cr-00061-JES-DNF-1


UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                       versus

LUIS DOMINGUEZ-DEVALLE,
                                                              Defendant-Appellant.

                           ________________________

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

                                 (October 24, 2012)


Before HULL, MARTIN and EDMONDSON, Circuit Judges.


PER CURIAM:

      Luis Dominguez-Devalle appeals his within guideline 84-month sentence

imposed after he pleaded guilty to illegal reentry into the United States following a
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previous deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). No reversible

error has been shown; we affirm.

      On appeal, Dominguez-Devalle first argues that the sentencing court erred

by considering unreliable hearsay information contained in the presentence

investigation report (“PSI”) -- that his diagnosis of an anti-social personality

disorder made him more likely to engage in criminal activities -- in imposing the

sentence.

      “A sentencing court may consider any information, (including hearsay),

regardless of its admissibility at trial, in determining whether facts exist that would

enhance a defendant’s sentence, provided that the evidence has sufficient indicia

of reliability, the court makes explicit findings of fact as to credibility, and the

defendant has an opportunity to rebut the evidence.” United States v. Ghertler,

605 F.3d 1256, 1269 (11th Cir. 2010) (citation omitted). A defendant has a due

process right, however, not to be sentenced based on unreliable information. Id.

To prevail on a challenge to a sentence based on the consideration of such

information, a defendant must show that (1) the challenged evidence was

unreliable, and (2) the evidence actually served as the basis for the sentence. Id.

The defendant bears the burden of showing that the court explicitly relied on the

challenged information. Id.

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      In compiling the section titled “Mental and Emotional Health” in

Dominguez-Devalle’s PSI, the probation officer indicated that he had included

information taken directly from a 2001 PSI, including that (in 1995) the United

States District Court for the Northern District of Ohio had referred

Dominguez-Devalle to a diagnostic center to undergo a competency evaluation in

a bid to assess his competency to stand trial for a 1994 charge of illegal reentry

after a previous deportation. The 1995 testing revealed that Dominguez-Devalle

had “significant anti-social tendencies” and possessed the necessary criteria for an

anti-social personality disorder diagnosis. The evaluator explained that people

with anti-social tendencies “frequently engage in criminal activities” and “do not

seem to learn from experience.”

      In his instant case, Dominguez-Devalle objected to the inclusion of

information derived from the previous psychological evaluation because he had

never received a copy of the report outlining the results of the evaluation. He

further stated that he did not know the identity of the evaluator or the

circumstances surrounding the compilation of the report.

      At sentencing, the district court concluded that because nothing indicated

that objections had been lodged against the 2001 PSI, the court would not strike




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the information from the current PSI. The district court subsequently adopted all

the PSI’s findings.

       Here, the district court deemed the hearsay evidence about

Dominguez-Devalle’s mental health to be credible; and it is at least arguable that

the evidence bears a sufficient indicia of reliability, given that the information was

generated in a previous federal prosecution and included in a PSI. In this case,

Dominguez-Devalle was, however, never given an opportunity to rebut the

evidence because he did not know the source of the information or the basis for

the opinion beyond the conclusory statements included in his current PSI.1 We

accept that he was unable to cross-examine the report’s author or meaningfully to

challenge the methodology. See Ghertler, 605 F.3d at 1269.

       Even though the PSI contained potentially unreliable hearsay testimony, we

conclude that Dominguez-Devalle failed to demonstrate that the district court

explicitly relied on the information about his mental health (as opposed to his

physical health: a different point altogether) in reaching the sentence. See id. The

   1
     To the extent that Dominguez-Devalle contends that he was denied his Sixth Amendment
right to confrontation with respect to the challenged information, we have maintained -- post
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) -- that “[t]he
right to confrontation is not a sentencing right.” United States v. Cantellano, 430 F.3d 1142,
1146 (11th Cir. 2005). Dominguez-Devalle presumably had the opportunity -- regardless of
whether taken -- to confront the author of the contested information when the evaluation was
conducted in 1995 during the course of the prior criminal proceedings.


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psychological diagnosis was not mentioned as a cause for the sentence selected by

the district court. At sentencing, the district court highlighted Dominguez-

Devalle’s extensive criminal history: he had been deported on three separate prior

occasions and illegally returned to the United States after each deportation.

Moreover, his criminal history consisted of additional crimes committed while he

was illegally in the United States. As a result, the court reasoned that the sentence

imposed should be greater than the 46-month and 57-month sentences

Dominguez-Devalle had received for the prior illegal reentry violations. Given the

circumstances, Dominguez-Devalle failed to establish that the district court either

relied on the challenged evidence or that the challenged evidence actually served

as the basis for the sentence. See Ghertler, 605 F.3d at 1269.

      Dominguez-Devalle maintains that, because the district court is not required

to state explicitly all of its reasons for imposing a sentence, it is impossible to

demonstrate how significantly the objected-to-evidence weighed in the court’s

conclusion. His argument is without merit. Our precedent makes clear that

Dominguez-Devalle bears the burden of showing that the district court explicitly

relied on the contested information; he has failed to meet this burden.

      Dominguez-Devalle also argues that his sentence was substantively

unreasonable based on an improper weighing of the 18 U.S.C. § 3553(a) factors.

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He asserts that the district court placed undue stress on his 1992 conviction for

drug trafficking and did not properly consider potential mitigating factors,

including his ties in the United States and his deteriorating health.

       We review a final sentence for procedural and substantive reasonableness.

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). We evaluate the

substantive reasonableness of a sentence under a deferential abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.

445 (2007). The party challenging the reasonableness of a sentence bears the

burden of establishing that the sentence is unreasonable in the light of both the

record and the section 3553(a) factors. United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005).2

       We conclude that Dominguez-Devalle’s 84-month sentence -- which fell

within the applicable guidelines range -- was substantively reasonable. See id.

(noting that “ordinarily we would expect a sentence within the Guidelines range to

be reasonable”). The sentence was well below the statutory maximum of 20 years’

imprisonment. See 8 U.S.C. § 1326(b)(2); United States v. Winingear, 422 F.3d


   2
     Under section 3553(a), a district court should consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the need for the sentence to provide
adequate deterrence, respect for the law, and protection of the public, policy statements of the
Sentencing Commission, provision for the medical and educational needs of the defendant, and
the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).

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1241, 1246 (11th Cir. 2005) (comparing, as one indicator of reasonableness, the

actual prison term imposed against the statutory maximum).

      Dominguez-Devalle’s argument that the sentencing court did not properly

weigh the relevant section 3553(a) factors plainly is belied by the record. The

court noted his extensive criminal history over a 35-year period, including drug

related offenses and two prior felony convictions for illegal reentry after previous

deportation. The court also explained that it would be unreasonable for

Dominguez-Devalle now to expect a lower sentence than either of his previous

sentences for illegal reentry. Although he asserts that the court failed to weigh

properly various mitigating factors -- such as his health issues and his ties to the

United States -- the weight to be given a particular factor is left to the sound

discretion of the district court, absent a clear error of judgment. See United States

v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).

      Given Dominguez-Devalle’s extensive criminal history, his propensity for

recidivism, and the need to deter him from further criminal conduct, for the district

court to impose this sentence within the guidelines range was reasonable. We

cannot say that the sentence failed to reflect the purposes of sentencing or that the

district court committed “a clear error of judgment in weighing the [section]

3553(a) factors by arriving at a sentence that lies outside the range of reasonable

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sentences dictated by the facts of the case.” See id. at 1203. Dominguez-Devalle

has not carried his burden of showing that his sentence is unreasonable.

            AFFIRMED.




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