           Case: 13-14553   Date Filed: 08/14/2014   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14553
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:13-cr-00262-WJC-EAJ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus


ISIDRO RAMIREZ-MARTINEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 14, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Isidro Ramirez-Martinez appeals his total 48-month sentence, imposed after

pleading guilty to one count of illegal reentry of a deported alien, in violation of

8 U.S.C. § 1326(a), and one count of illegal entry by an alien, in violation of

8 U.S.C. §§ 1325(a)(1) and 1329. The district court imposed an advisory guideline

sentence of 48 months’ imprisonment by imposing consecutive statutory maximum

sentences for both counts, in accordance with U.S.S.G. § 5G1.2(d), which allows

for consecutive sentences when the sentence for the count carrying the highest

statutory maximum is less than the total punishment prescribed by the Sentencing

Guidelines. On appeal, Ramirez-Martinez argues that his sentence is procedurally

unreasonable because the district court failed to adequately explain the reasons for

imposing a 48-month statutory maximum total sentence, even though he had made

numerous arguments for a sentence below the statutory maximum. He also argues

that his sentence is substantively unreasonable. Finally, he argues that the district

court erred in applying a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), based on its finding that his prior conviction under Fla. Stat.

§ 843.01, for resisting an officer with violence, was a “crime of violence.” He

maintains that his prior conviction under Fla. Stat. § 843.01 was not a “crime of

violence.”

      We will address each of Ramirez-Martinez’s arguments in turn.




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                                              I.

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

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

586, 591, 169 L.Ed.2d 445 (2007). In evaluating the reasonableness of a sentence,

we follow a two-step process by first determining whether the sentence is

procedurally reasonable, and then if necessary, determining if the sentence is

substantively reasonable. Id. at 51, 128 S.Ct. at 597. A sentence may be

procedurally unreasonable if the sentencing court fails to consider the factors set

forth in 18 U.S.C. § 3553(a), fails to properly calculate the appropriate guidelines

range, or fails to adequately explain the chosen sentence. Id. However, given the

advisory nature of the Sentencing Guidelines, it is sufficient if there is some

indication that “the district court was aware of and considered the Guidelines.”

United States v. Campbell, 473 F.3d 1345, 1349 (11th Cir. 2007) (quotation

omitted). Consequently, the district court need not discuss or explicitly state on the

record each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329 (11th

Cir. 2005).

      “The sentencing judge should set forth enough to satisfy [us] that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127


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S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). However, “when a judge decides

simply to apply the Guidelines to a particular case, doing so will not necessarily

require lengthy explanation. Circumstances may well make clear that the judge

rests his decision upon the Commission’s own reasoning that the Guidelines

sentence is a proper sentence.” Id. at 356-57, 127 S.Ct. at 2468. “Where the

defendant or prosecutor presents nonfrivolous reasons for imposing a different

sentence, however, the judge will normally go further and explain why he has

rejected those arguments.” Id. at 357, 127 S.Ct. at 2468. The appropriateness of

how much to write and what to say therefore depends on the circumstances of the

case, and “[t]he law leaves much, in this respect, to the judge’s own professional

judgment.” Id. at 356, 127 S.Ct. at 2468.

      Once we determine that a sentence is procedurally reasonable, we examine

whether the sentence imposed is substantively reasonable. Gall, 552 U.S. at 51,

128 S.Ct. at 597. In reviewing for substantive reasonableness, we examine the

totality of the circumstances and ask “whether the statutory factors in § 3553(a)

support the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008). The party challenging the sentence has the burden of

demonstrating that the sentence is unreasonable in light of the record and factors

outlined in § 3553(a). United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

We will remand for resentencing only if the district court “committed a clear error


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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 omitted).

      Pursuant to § 3553(a), the district court must impose a sentence “sufficient,

but not greater than necessary, to comply with the purposes” listed in 18 U.S.C.

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

promote respect for the law, to provide just punishment for the offense, to deter

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

conduct. See 18 U.S.C. § 3553(a). In imposing a particular sentence, the district

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, and the need to provide

restitution to victims. Id. § 3553(a)(1), (3)-(7). The weight given to any specific

§ 3553(a) factor is committed to the sound discretion of the district court. United

States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). However, the district

court can abuse its discretion when it (1) fails to consider factors that were due

significant weight, (2) gives an improper or irrelevant factor significant weight, or

(3) commits a clear error of judgment by balancing the proper factors

unreasonably. Irey, 612 F.3d at 1189.


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      Ramirez-Martinez has failed to show that his sentence was procedurally

unreasonable. On appeal, he argues that the district court failed to adequately

explain its chosen sentence. However, his argument is unavailing because this was

one of the situations contemplated by the Supreme Court in Rita, where a lengthy

explanation was not required because the circumstances make clear that the district

court rested its decision upon the United States Sentencing Commission’s own

reasoning that the Guidelines sentence was the proper sentence. See Rita, 551 U.S.

at 356-57, 127 S.Ct. at 2468. Here, the advisory guideline range was a single

point, 48 months, and that point was the statutory maximum with consecutive

sentences. The government argued for it, noting that it was well below the bottom

end of the advisory guideline range before the imposition of the statutory

maximum. Ramirez-Martinez, in opposition, argued for a 24-month total sentence,

and in support, maintained that it would be sufficient punishment and deterrence,

because it was 8 times as long as his prior 105-day sentence for illegal entry. He

also argued that because the offenses of illegal reentry and illegal entry consisted

of nearly identical conduct, the district court would essentially be “punish[ing] him

twice or basically commit[ing] double jeopardy,” if it imposed consecutive

sentences. However, he conceded that it would not “legally [be] double jeopardy.”

Finally, he argued that a total sentence of 48 months’ imprisonment would give

him no credit for his acceptance of responsibility and timely guilty plea.


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      After entertaining the parties’ arguments, the district court imposed the

Guidelines sentence, and stated that the sentence was sufficient, but not greater

than necessary, to comply with the statutory purposes of sentencing, necessarily

indicating that it had rejected Ramirez-Martinez’s position and agreed with the

government’s position. In imposing the sentence, the district court did not need to

provide a lengthy explanation for rejecting several of Ramirez-Martinez’s

arguments, particularly his “double jeopardy” argument, which even he conceded

was not “legally double jeopardy.” See Rita, 551 U.S. at 357, 127 S.Ct. at 2468

(“Where the defendant or prosecutor presents nonfrivolous reasons for imposing a

different sentence, . . . the judge will normally go further and explain why he has

rejected those arguments.”). However, the district court did give a response to

Ramirez-Martinez’s acceptance of responsibility argument, essentially stating that

Ramirez-Martinez had received the benefit for his acceptance of responsibility in

the guideline calculations, even though it did not show up in the total 48-month

sentence, due to the application of the statutory maximum. As for the rest of

Ramirez-Martinez’s arguments, they were adequately addressed by the district

court’s implicit agreement with the government’s explanation that Ramirez-

Martinez had already received a substantial benefit with the imposition of a total

48-month sentence, because, if the government had properly charged him with the

offense of illegal reentry of a previously deported felon, based upon his prior


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conviction under Fla. Stat. § 843.01, he would have faced an advisory guideline

range of 57 to 71 months’ imprisonment and a statutory maximum sentence of 10

years’ imprisonment. Accordingly, under the circumstances, the district court’s

brief explanation was legally sufficient. See Rita, 551 U.S. at 356, 127 S.Ct. at

2468.

        Ramirez-Martinez has also failed to show that his sentence was

substantively unreasonable. He has not shown that his Guidelines sentence of 48

months’ imprisonment was substantively unreasonable in light of the totality of the

circumstances and the § 3553(a) factors. See Gonzalez, 550 F.3d at 1324. The

need for the sentence to promote respect for the law and adequate deterrence was

high, given Ramirez-Martinez’s history of quickly and repeatedly making illegal

reentries into the United States after being deported. Ramirez-Martinez’s

Guidelines sentence was also reasonable in light of his own history and

characteristics, particularly his criminal history of multiple arrests and convictions

in the United States, including a conviction for resisting an officer with violence

and a conviction for battery. Accordingly, we affirm.

                                           II.

        “We review the district court’s findings of fact for clear error and its

application of the Sentencing Guidelines de novo.” United States v. Newman, 614

F.3d 1232, 1235 (11th Cir. 2010) (quotation omitted). Accordingly, whether a


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defendant’s prior conviction constitutes a “crime of violence” under the Guidelines

is reviewed de novo. United States v. Diaz-Calderone, 716 F.3d 1345, 1348 (11th

Cir. 2013).

      Under the Guidelines, a defendant being sentenced for illegal reentry into

the United States may receive a 16-level enhancement if he was previously

deported following a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). In

Romo-Villalobos, we held that a conviction under Fla. Stat. § 843.01, for resisting

an officer with violence, was a “crime of violence” for purposes of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). United States v. Romo-Villalobos, 674 F.3d 1246, 1249-1251

(11th Cir.), cert. denied, 133 S.Ct. 248 (2012).

      Ramirez-Martinez’s argument is foreclosed by Romo-Villalobos. See United

States v. Lawson, 686 F.3d 1317, 1319 (11th Cir.), cert. denied, 133 S.Ct. 568

(2012) (“We are bound by a prior panel opinion until the opinion’s holding is

overruled by the Supreme Court or by our Court sitting en banc.”). Accordingly,

we affirm the sentence on this ground.

      AFFIRMED.




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