             Case: 11-16192     Date Filed: 09/10/2012   Page: 1 of 8

                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 11-16192
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:11-cr-00313-JSM-EAJ-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                      versus

JOSE GUADALUPE GUTIERREZ,

                                                             Defendant-Appellant.

                        ___________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                     ____________________________
                            (September 10, 2012)

Before MARCUS, PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:

      Jose Guadalupe Gutierrez was convicted by a jury of two counts of carjacking,

in violation of 18 U.S.C. § 2119, and two counts of carrying a gun during and in
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relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). The district

court sentenced him to 462 months’ imprisonment, which was on the low end of the

range recommended by the Sentencing Guidelines, and included a statutory minimum

sentence of 384 months’ imprisonment. Mr. Gutierrez appeals both his convictions

and his sentence, arguing that there was insufficient evidence to support the verdict

and that his sentence is procedurally and substantively unreasonable. We affirm.

                                          I.

        We review de novo a challenge to the sufficiency of the evidence, United

States v. Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005), and “we consider the

evidence in the light most favorable to the government, with all inferences and

credibility choices drawn in the government’s favor,” United States v. DuBose, 598

F.3d 726, 729 (11th Cir. 2010) (quotation marks omitted). “The jury gets to make any

credibility choices, and we will assume that they made them all in the way that

supports the verdict. It is not enough for a defendant to put forth a reasonable

hypothesis of innocence, because the issue is not whether a jury reasonably could

have acquitted but whether it reasonably could have found guilt beyond a reasonable

doubt.” United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006). “A

conviction must be upheld unless the jury could not have found the defendant guilty

under any reasonable construction of the evidence.” United States v. Chastain, 198

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F.3d 1338, 1351 (11th Cir. 1999).

      With sparse argument, Mr. Gutierrez contends that we must reverse the jury’s

verdict because the evidence “was a morass of contradictions.” Specifically, he argues

that the evidence “was tainted by the inconsistent and incredible testimony [of] the

alleged victims.” Mr. Gutierrez does not tell us exactly what portions of the testimony

trouble him, but our review of the record discloses several possibilities. For example,

one victim testified that he had been driving toward his home when he encountered

Mr. Gutierrez, but a police report written just after the carjacking suggested that the

victim had been driving away from his home. And an officer testified that Mr.

Gutierrez was wearing a black shirt when the officer found him near the wreckage of

one of the carjacked vehicles, which had just crashed following a high-speed evasion

attempt, but other evidence suggested the shirt was blue.

      This evidence might not be a model of consistency, but it is far from being

incredible as a matter of law. See Thompson, 422 F.3d at 1291 (noting that testimony

must be unbelievable on its face—by including facts a witness could not possibly

have observed or events that could not have occurred under the laws of nature, for

example—to be incredible as a matter of law). The jury considered any

inconsistencies in the evidence and credited what it found most believable. We

decline Mr. Gutierrez’s invitation to revisit the jury’s credibility determinations. See

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United States v. Siegelman, 640 F.3d 1159, 1165 (11th Cir. 2011) (“In our system, the

jury decides what the facts are, by listening to the witnesses and making judgments

about whom to believe. This they have done, and, though invited to do so, we shall

not substitute our judgment for theirs.”) (footnote omitted).

      The evidence as a whole is sufficient to support Mr. Gutierrez’s convictions.

The government presented testimony from two victims who averred that Mr.

Gutierrez took their cars at gunpoint, from an officer who apprehended Mr. Gutierrez

after a high-speed chase (and a collision) involving one of the carjacked vehicles,

from other officers who talked to the victims and collected crime-scene evidence, and

from an analyst who matched spent shell casings found at the scene of one carjacking

to a gun found in the “debris field” of the wreckage after Mr. Gutierrez’s unsuccessful

attempt to evade police in one of the carjacked vehicles. That evidence, when

combined with the parties’ stipulation that the carjacked vehicles had moved in

interstate commerce, is enough to support the jury’s verdict. See United States v.

Diaz, 248 F.3d 1065, 1096 (11th Cir. 2001); United States v. Pounds, 230 F.3d 1317,

1319 (11th Cir. 2000).

                                          II.

      Mr. Gutierrez also contends that his 462-month sentence is both procedurally

and substantively unreasonable. “We review sentencing decisions only for abuse of

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discretion, and we use a two-step process.”1 United States v. Shaw, 560 F.3d 1230,

1237 (11th Cir. 2009). We “must first ensure that the district court committed no

significant procedural error, such as . . . failing to consider the § 3553(a) factors . . .

or failing to adequately explain the chosen sentence. . . .” Gall v. United States, 552

U.S. 38, 51 (2007). We “then consider the substantive reasonableness of the sentence

imposed,” taking into account the “totality of the circumstances.” Id. Although we do

not automatically presume that a sentence falling within the guidelines range is

reasonable, we ordinarily expect it to be. See United States v. Hunt, 526 F.3d 739,

746 (11th Cir. 2008).

       Mr. Gutierrez’s sentence—which was the lowest within-guidelines option for

his convictions—meets our expectation of reasonableness, as it is neither

procedurally nor substantively flawed . First, we disagree with Mr. Gutierrez that the

district court failed to explain the sentence adequately. After hearing from Mr.

Gutierrez’s counsel and the government, the district court stated that it had “reviewed

the presentence report” and had considered the § 3553 factors and “advisory

guidelines.” The court then imposed the lowest sentence suggested by those


1
 The government argues that we should review the procedural reasonableness of Mr. Gutierrez’s
sentence under the plain-error standard because he failed to object to the adequacy of the district
court’s explanation of his sentence at the time the district court rendered it. But we have not yet
adopted such an approach in a published opinion, and we do not need to do so here: Mr. Gutierrez’s
sentence is reasonable even under the abuse-of-discretion standard.

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guidelines, waiving a fine because of Mr. Gutierrez’s “financial status.” The court

concluded its statement with a specific finding “that the sentence complies with the

purposes set forth in 18 U.S.C. § 3553.”

      Mr. Gutierrez argues that the district court neither specified which § 3553

factors it considered nor addressed his mitigation evidence regarding his age, abusive

childhood, anger issues, and drug problem. He asserts that the court did not give an

“individualized” explanation particular to him but instead simply “robotically opined”

that the 462-month sentence was appropriate. As Mr. Gutierrez concedes, however,

the district court heard his mitigation arguments just before pronouncing the sentence

(in addition to reading about them in the presentence report) and made clear on the

record that it had considered the § 3553 factors. And the court certainly tailored its

sentence to Mr. Gutierrez’s particular circumstances, as it declined to impose a fine

based on his personal financial status.

      Although the district court could have said more, it said enough on this record.

“[W]e have held that a court’s explicit acknowledgment that it has considered a

defendant’s arguments and the § 3553(a) factors is sufficient to demonstrate that it

has adequately and properly considered those factors.” United States v. Ellisor, 522




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F.3d 1255, 1278 (11th Cir. 2008).2 We have also “squarely h[e]ld that nothing . . .

requires the district court to state on the record that it has explicitly considered each

of the § 3553(a) factors or to discuss each of the § 3553(a) factors” for a sentence to

be procedurally sound. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Thus, Mr. Gutierrez’s sentence is procedurally reasonable.

       The sentence is also substantively reasonable, which, as a within-guidelines

sentence, we generally expect it to be. See Hunt, 526 F.3d at 746. Although Mr.

Gutierrez argues that 462 months is “greater than necessary to achieve the purpose

of sentencing” (and that 384 months—the statutory minimum—would have been

sufficient), we see nothing unreasonable in the district court’s decision not to

sentence Mr. Gutierrez below the advisory guidelines range. First, a sentence of 384

months would have provided no incremental punishment for the carjacking offenses.

Second, the seriousness of the crimes—which involved the discharge of guns and a

high-speed car chase through afternoon traffic—and Mr. Gutierrez’s criminal history

(some of it violent) and lack of remorse supported that choice. Although a sentence

somewhere between 384 months and 462 months would have been permissible, the


2
  Citing other circuits’ decisions, Mr. Gutierrez suggests to us that our precedent of allowing district
courts to sentence defendants without exhaustive explanations of how they reached those sentences
does not “provide for meaningful appellate review.” Unless and until our precedent is overruled by
the United States Supreme Court or by this Court sitting en banc, however, we are bound to follow
it. See, e.g., United States v. King, 509 F.3d 1338, 1343 (11th Cir. 2007).

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sentence imposed is reasonable.

                                         III.

      Mr. Gutierrez’s conviction and sentence are affirmed.

      AFFIRMED.




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