                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              Aug. 28, 2009
                               No. 09-10429                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 08-10056-CR-KMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

RAFAEL LOPEZ,

                                                           Defendant-Appellant.


                         ________________________

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

                              (August 28, 2009)

Before BIRCH, BARKETT and FAY, Circuit Judges.

PER CURIAM:

     Rafael Lopez appeals from the 60-month sentence he received as a result of
pleading guilty to one count of conspiring to encourage and induce aliens to enter

the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). He argues that his

sentence is unreasonable because the judge, citing Lopez’s prior conviction under

the same statute, deviated nineteen months above the applicable guideline range of

33-41 months, an increase of roughly 50% of the suggested high end guideline

sentence and almost 100% greater than the low end. Lopez claims this is

unreasonable because the guideline range already reflected that conviction,

specifically pointing to the fact that he received (1) a two-level increase in his

offense level under U.S.S.G. § 2L1.1(b)(3)(A) because he had a previous

conviction for a felony immigration and naturalization offense and (2) two criminal

history points for that conviction, which increased the length of the guidelines

range.

         We review a defendant’s sentence for reasonableness. United States v.

Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005). The

party challenging the sentence “bears the burden of establishing that the sentence is

unreasonable in light of both [the] record and the factors in section 3553(a).”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). In arriving at a

reasonable sentence, the district court is required to consider the factors set out in

18 U.S.C. § 3553(a):



                                            2
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need for the sentence
      imposed–(A) to reflect the seriousness of the offense, to promote
      respect for the law, and to provide just punishment for the offense; (B)
      to afford adequate deterrence to criminal conduct; (C) to protect the
      public from further crimes of the defendant; and (D) to provide the
      defendant with needed educational or vocational training, medical
      care, or other correctional treatment in the most effective manner;
      (3) the kinds of sentences available; (4) [the sentencing guidelines
      range;] (5) any pertinent policy statement [of the Sentencing
      Commission;] (6) the need to avoid unwarranted sentence disparities
      among defendants with similar records who have been found guilty of
      similar conduct; and (7) the need to provide restitution to any victims
      of the offense.

The district court shall then impose a sentence that is “sufficient, but not greater

than necessary,” to comply with the purposes of 18 U.S.C. § 3553(a)(2). Id.

      We have recognized that “there is a range of reasonable sentences from

which the district court may choose[.]” Talley, 431 F.3d at 788. Furthermore,

“[t]he weight to be accorded any given § 3553(a) factor is a matter committed to

the sound discretion of the district court[.]” United States v. Clay, 483 F.3d 739,

743 (11th Cir. 2007) (quotation omitted). A district court may impose a variance if

it determines that “the case at hand falls outside the ‘heartland’ to which the

Commission intends individual Guidelines to apply, perhaps because the

Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or

perhaps because the case warrants a different sentence regardless.” Rita v. United

States, 551 U.S. 338, ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (citation

                                           3
omitted). The Supreme Court has rejected “an appellate rule that requires

‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.”

Gall, 552 U.S. at ___, 128 S.Ct. at 595. The Court clarified, however, that “a

major departure should be supported by a more significant justification than a

minor one.” Id. at ___, 128 S.Ct. at 597.

      In this case, the district court upwardly departed from the guideline range,

giving the following justification:

      One would have thought, hoped, that a period of incarceration for
      smuggling activity would be sufficient to the ordinary criminal to
      refrain from engaging in similar activity in the future. Obviously it
      wasn’t in this case. So, I think it's appropriate to impose a sentence
      above the guideline range in order to protect the public and provide
      adequate deterrence, to promote respect for the law. Obviously
      recidivism of similar activity does not demonstrate that type of respect
      for law.

Beyond Lopez’s criminal history and the general need for more effective

deterrence, the district court considered other § 3553(a) factors in imposing the

upward variance, including the seriousness of the offense and the nature and

circumstances of the conduct.

      By focusing only on Lopez’s criminal history, without providing any other

justification as to the need to deviate almost fifty percent above the high end of the




                                            4
guideline range,1 we believe the district court abused its discretion in concluding

that this 60-month sentence was sufficient but not greater than necessary.2

       REVERSED.




       1
         During a colloquy with the judge, Lopez’s counsel acknowledged that it was within the
court’s discretion to consider the previous conviction in deviating above the guideline range,
despite the conviction’s role in helping to dictate that range. However, the judge’s ability to do
so does not then give free rein to impose any sentence above without first adequately justifying
that decision.
       2
           This case is traveling with United States v. Sotolongo, 09-10427.

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