                    Case: 12-10368         Date Filed: 11/26/2012   Page: 1 of 6

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10368
                                        Non-Argument Calendar
                                      ________________________

                              D.C. Docket No. 9:11-cr-80111-DTKH-4


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

BASIL BARKER,
a.k.a. Bazil Barker,
a.k.a. Long Dog Barker,
a.k.a. Simon Anabery Niles,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                      (November 26, 2012)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

         Basil Barker appeals his total sentence of 36 months’ imprisonment,
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imposed below the applicable guideline range of 41 to 51 months’ imprisonment,

after he pled guilty to illegal re-entry of a deported alien, in violation of 8 U.S.C.

§ 1326(a), (b)(2). For the reasons set forth below, we affirm Barker’s sentence.

                                           I.

      According to the presentence investigation report, Barker was arrested after

the U.S. Coast Guard pursued a vessel that was transporting him and other

migrants, two of which were children, into the United States. In the course of the

vessel’s attempt to evade the U.S. Coast Guard, the vessel capsized, and one

pregnant woman, who was the mother of one of the children, was discovered dead,

beneath the vessel.

      At sentencing, the district court determined that Barker had a guideline

range of 41 to 51 months’ imprisonment. Barker requested a variance from the

applicable guideline range because he only returned to the United States to visit

his wife and children, he had a disadvantaged childhood, and he had a concerning

medical condition, relating to a tumor-like growth on his head. Barker also sought

a downward variance because the Bureau of Prisons (“BOP”) treated aliens and

citizens disparately with respect to their eligibility for various prison

classifications and programs.

      The court compared Barker to one of his codefendants who the court had

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previously sentenced and found that Barker’s codefendant’s guideline range was

lower than Barker’s guideline range, despite his codefendant having more prior

drug convictions than Barker. Although Barker had only been convicted of

possession with intent to distribute cocaine and of possession of cocaine, a total

sentence of 20 years’ imprisonment was imposed for those convictions, and the

underlying offenses had involved a loaded gun.

      In considering the nature and circumstances of Barker’s instant offense, the

district court stated that the United States was concerned about the security of its

borders and that it was a serious offense where a person has been deported

because of a justified reason, but the person returned without authorization.

Barker’s offense was serious, in part, because of the dangerous nature of the

journey to the United States. The court acknowledged that Barker had maintained

relationships with his family in the United States, despite Barker being out of the

United States for about 12 years. The court stated that it understood Barker’s

desire to return to the United States to be with his family and for economic

opportunities. The court also expressed concern over Barker’s head growth.

      The court noted the importance of imposing a sentence that would promote

respect for the law and that would be a deterrent to Barker so that he would not

attempt to return again. The court stated that it was not relying on any difference

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between the treatment of aliens and U.S. citizens in prison in imposing his

sentence, because those grounds would not be justified. The court then imposed a

sentence of 36 months’ imprisonment.

                                         II.

      On appeal, Barker argues that his sentence of 36 months’ imprisonment was

substantively unreasonable because the district court did not adequately consider

his status as an alien, which made him ineligible for (1) a minimum security

designation, (2) the BOP’s drug-treatment program, and (3) transition to a halfway

house. The district court also failed to fully consider the following: (1) his intent

in returning to the United States, which was to be reunited with his family and

provide them with a better life; (2) his serious medical condition, which could

require an expensive surgery, the cost of which the government would bear; and

(3) the fact that his prior conviction was 15 years old and that he had only served 3

years’ imprisonment for it.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard of review. See Gall v. United States, 552 U.S. 38, 41, 128

S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). The party challenging the sentence has

the burden of establishing that the sentence was unreasonable based on the record

and the factors set forth in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d

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784, 788 (11th Cir. 2005).

      In reviewing a sentence’s substantive reasonableness, we examine the

totality of the circumstances, which includes an inquiry into whether the § 3553(a)

factors support the sentence in question. United States v. Gonzales, 550 F.3d

1319, 1323-24 (11th Cir. 2008). The district court must impose a sentence

sufficient, but not greater than necessary, to comply with the purposes listed in

§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote

respect for the law, provide just punishment for the offense, deter criminal

conduct, and protect the public from the defendant’s future criminal conduct. See

18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must also

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

characteristics of the defendant, the kinds of sentences available, the applicable

guideline range, the pertinent policy statements of the Sentencing Commission, the

need to avoid unwarranted sentencing disparities among defendants with similar

records who have been found guilty of similar conduct, and the need to provide

restitution to victims. Id. § 3553(a)(1), (3)-(7).

      Barker has not shown that the district court imposed a substantively

unreasonable sentence, as his sentence of 36 months’ imprisonment was below the

applicable guideline range of 41 to 51 months’ imprisonment. The record

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demonstrates that the district court considered the § 3553(a) factors in imposing

the sentence, and there does not appear to be anything in the record demonstrating

that the sentence is substantively unreasonable based on those factors. The district

court recognized several reasons for varying from the applicable guideline.

Nevertheless, Barker’s offense was serious because, as the court noted, the offense

involved the security of U.S. borders, and the circumstances surrounding it were

dangerous, as it involved the use of an unsafe boat, which contributed to the death

of one woman. Further, Barker had a criminal record, as he had committed a

serious drug offense in the past that involved cocaine and marijuana, as well as a

loaded gun. The court also found that there was a need for deterrence to prevent

the offense from occurring again. Under the totality of the circumstances, Barker

has not shown that the district court’s decision to not vary further from the

applicable guideline range based on his ineligibility for various BOP designations

and programs due to his status as an illegal alien was unreasonable or resulted in a

sentence greater than necessary, especially in light of the fact that Barker has not

shown any unwarranted sentencing disparities between himself and others

convicted of similar conduct. Gonzales, 550 F.3d at 1323-24. Accordingly, the

district court did not abuse its discretion in sentencing Barker to 36 months’

imprisonment.

       For the foregoing reasons, we affirm Barker’s sentence.

      AFFIRMED.

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