            Case: 13-10799   Date Filed: 12/05/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10799
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:12-cr-00254-JEC-ECS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CARLOS MARADIAGA-LARIOS,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (December 5, 2013)

Before JORDAN, DUBINA, and FAY, Circuit Judges.

PER CURIAM:
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      Carlos Maradiaga-Larios appeals his 32-month sentence, imposed after he

pled guilty to illegal reentry into the United States, in violation of 8 U.S.C. §§

1326(a) and (b)(2). Maradiaga-Larios asserts that, in calculating his Sentencing

Guidelines range, his prior misdemeanor-battery offense was improperly

considered an aggravated felony, based solely on the technical wording of the trial

judge’s judgment; he further contends he was subject to disparate treatment

compared to similarly situated individuals. Additionally, Maradiaga-Larios argues

his sentence does not account for the two months he spent in immigration custody.

      We review de novo the definition of an aggravated felony in U.S.S.G. §

2L1.2. United States v. Ayala-Gomez, 255 F.3d 1314, 1316 (11th Cir. 2001). We

review the reasonableness of a sentence deferentially for abuse of discretion. Gall

v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L. Ed. 2d 445 (2007).

      “If the defendant previously was deported, or unlawfully remained in the

United States, after a conviction for an aggravated felony,” he receives an eight-

level increase to his offense level. U.S.S.G. § 2L1.2(b)(1)(C). The term

“aggravated felony” means “an offense that has as an element the use, attempted

use, or threatened use of physical force against the person or property of another”

for which the term of imprisonment is at least one year. Id. § 2L1.2, cmt. n.3(A); 8

U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(a). The “term of imprisonment” includes

parts of the sentence probated by the trial court under Georgia law. Ayala-Gomez,


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255 F.3d at 1319 (holding that, although the defendant’s five-year sentence of

imprisonment was probated to eight months of imprisonment and four years and

four months of probation, the sentence properly was treated as a five-year sentence

for the purpose of being considered an aggravated felony under U.S.S.G. §

2L1.2(b)).

      The substantive reasonableness of a sentence is determined in light of the

totality of the circumstances; we will not vacate a sentence as substantively

unreasonable, unless we are left with the definite and firm conviction that the

district judge clearly erred in weighing the 18 U.S.C. § 3553(a) factors and

imposed a sentence outside the range of reasonable sentences. United States v.

Turner, 626 F.3d 566, 571 n.2, 573 (11th Cir. 2010). “The party challenging the

sentence bears the burden to show it is unreasonable in light of the record and the §

3553(a) factors.” Id. at 573.

      The district judge is required to impose a sentence “sufficient, but not

greater than necessary, to comply with the purposes” listed in § 3553(a), 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. 18 U.S.C. § 3553(a)(2). In

imposing a particular sentence, the district judge also must consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the


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kinds of sentences available, the applicable Guidelines range, the pertinent policy

statements of the Sentencing Commission, and the need to provide restitution to

victims. Id. § 3553(a)(1),(3)-(5) and (7). The district judge must “avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” Id. § 3553(a)(6). A defendant, however,

does not show unwarranted sentencing disparities when he does not identify

similarly situated defendants, who received substantially different sentences.

United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009).

      The judge does not have to discuss each § 3553(a) factor explicitly. United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). “An acknowledgement

the district court has considered the defendant’s arguments and the § 3553(a)

factors will suffice.” Id. We will defer to the district judge’s judgment regarding

the weight given to the § 3553(a) factors, unless the judge made a clear error and

“imposed a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” Id. (citation and internal quotation marks omitted).

Ordinarily, we expect a sentence within the Guidelines range to be reasonable.

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

      The district judge did not err in treating Maradiaga-Larios’s prior battery

conviction as an aggravated felony under U.S.S.G. § 2L1.2. See Ayala-Gomez,

255 F.3d at 1316. The portion of his sentence that was probated under Georgia law


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comprised part of the “term of imprisonment”; therefore, his sentence of 12 months

for battery constituted an aggravated felony. See id. at 1319. The judge

considered the totality of circumstances, including Maradiaga-Larios’s disparity

arguments, and found his criminal history warranted a sentence within the

Guidelines range rather than below it. Maradiaga-Larios failed to identify any

similarly situated defendants, who received substantially lower sentences than his

sentence. Instead, he offered only hypothetical examples; accordingly, he did not

show an unwarranted sentence. See Sporeke, 568 F.3d at 1252. The district judge

also did not err in crediting Maradiaga-Larios with only five weeks toward his

sentence for the time he spent in immigration custody.

      Maradiaga-Larios’s sentence is well below the statutory maximum; we defer

to the district judge’s weighing of the § 3553(a) factors, in the absence of any clear

error in judgment. Gonzalez, 550 F.3d at 1324. Accordingly, we affirm

Maradiaga-Larios’s 32-month sentence as substantively reasonable.

      AFFIRMED.




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