                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-15941         ELEVENTH CIRCUIT
                                                       JULY 23, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                          CLERK

                    D. C. Docket No. 09-00283-CR-1-TCB

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ROBERTO GALLARDO-BERNAL,

                                                          Defendant-Appellant.


                        ________________________

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

                               (July 23, 2010)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:

     Roberto Gallardo-Bernal appeals from his 16-month sentence, imposed after
his conviction for illegally re-entering the United States after having previously

been removed from the United States, in violation of 8 U.S.C. § 1326(a). On

appeal, Gallardo-Bernal argues that his sentence, which is near the low end of his

guideline range, is substantively unreasonable, as it was greater than necessary to

serve the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a).

Specifically, he argues that this sentence was greater than necessary to serve the

purposes of deterrence and of protecting the public from his future crimes.

Gallardo-Bernal asserts that, because his case did not receive any media attention,

the district court’s decision to impose a sentence greater than the sentence he

requested did not serve the purpose of deterring others from illegally re-entering

the United States.

      For the reasons set forth below, we affirm.

                                          I.

      A federal grand jury indicted Gallardo-Bernal, charging him with illegally

re-entering the United States after having previously been removed from the

United States, in violation of 8 U.S.C. § 1326(a). Gallardo-Bernal pled guilty to

the offense.

      In preparing the presentence investigation report (“PSI”), the probation

officer found that Gallardo-Bernal’s total offense level was 10, and that his



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criminal history category was IV, which resulted in a guideline range of 15 to 21

months’ imprisonment. The probation officer reported that Gallardo-Bernal

previously had been deported from the United States on four separate occasions.

In reviewing Gallardo-Bernal’s criminal history, the probation officer reported

that, in 2003, Gallardo-Bernal sustained a previous conviction for illegal re-entry

into the United States, for which he was sentenced to term of 15 months’

imprisonment. Gallardo-Bernal had also sustained two convictions for battery, one

conviction for possession of cocaine, and two convictions for driving under the

influence of alcohol (“DUI”). At the time of his arrest for the present offense,

Gallardo-Bernal was serving a term of probation imposed for his more recent DUI

conviction .

       Addressing Gallardo-Bernal’s personal and family data, the probation

officer reported that Gallardo-Bernal’s father, who was 78 years old, still lived in

Mexico, and that Gallardo-Bernal’s mother had passed away during the previous

year. Gallardo-Bernal had informed the probation officer that he had two herniated

discs as a result of an injury that he suffered at work during 2008. Although

Gallardo-Bernal was supposed to undergo surgery as a result of this injury, his

incarceration had prevented him from having surgery. The parties did not file any

written objections to the PSI.



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      At sentencing, the court adopted the facts and guideline applications set

forth in the PSI. The parties confirmed that they had no objections to the PSI.

Gallardo-Bernal requested a downward variance, pointing out that, approximately

a year and a half before the sentencing hearing, he suffered a severe back injury

while he was working at a construction site. He was experiencing a great deal of

pain as a result of this injury, and had difficulty sitting and standing. Gallardo-

Bernal expressed his concern that adequate treatment for his injury was not

available to him in prison. Gallardo-Bernal also discussed the fact that, after he

completes his sentence in the present case, he will be transferred into state custody

in connection with a pending misdemeanor charge in Fulton County. He noted

that, after this state matter is concluded, he will be transferred into the custody of

U.S. Immigration and Customs Enforcement (“ICE”). Gallardo-Bernal indicated

that the court should consider the high level of physical discomfort that he will

endure while being held in custody in these future proceedings, and requested that

the court impose a sentence of seven or eight months’ imprisonment.

      The court expressed sympathy for Gallardo-Bernal’s injury, but stated that

Gallardo-Bernal’s “substantial” criminal history militated against a downward

variance. Gallardo-Bernal pointed out that his mother had died approximately one

year ago, and that his family members had expressed their desire for him to live



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with his father, who had health problems and resided in Mexico. Gallardo-Bernal

asserted that his family’s need for him to provide care to his father would deter him

from re-entering the United States. Gallardo-Bernal made a personal statement to

the court, in which he apologized for his offense and noted that he was suffering

from a great deal of pain due to his back injury. He explained that he had not yet

received effective medical treatment for his injury.

      The court sentenced Gallardo-Bernal to a term of 16 months’ imprisonment,

stating that, based on its consideration of the sentencing factors set forth in 18

U.S.C. § 3553(a), it found that this was a reasonable sentence. The court explained

that, if Gallardo-Bernal were not suffering from an injury, it would have sentenced

him to a term of 21 months’ imprisonment due to his previous convictions and

deportations. The court asked the parties if they had any objections to the

sentence, and Gallardo-Bernal objected that his sentence was unreasonable.

                                           II.

      After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), the Guidelines are advisory in nature, and “a sentence may be reviewed for

procedural or substantive unreasonableness.” United States v. Hunt, 459 F.3d

1180, 1181-82 & n.3 (11th Cir. 2006). The reasonableness of a sentence is

reviewed under an abuse-of-discretion standard. United States v. Pugh, 515 F.3d



                                           5
1179, 1189-90 (11th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51, 128

S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)).

       “[A] sentence may be substantively unreasonable, regardless of the

procedure used.” Hunt, 459 F.3d at 1182 n.3. The party challenging the sentence

“bears the burden of establishing that the sentence is unreasonable in the light of

[the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). Section 3553(a) provides that district courts imposing a

sentence must consider, inter alia:

       (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;
       [and] (3) the kinds of sentences available.

18 U.S.C. § 3553(a)(1)-(3). The court also should consider the applicable

guideline range, any pertinent policy statements promulgated by the Sentencing

Commission, the need to avoid any unwarranted sentencing disparities, and the

need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a)(4)-

(7).

       “[T]here is a range of reasonable sentences from which the district court may



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choose,” and, where the court imposes a sentence that is within the guideline range,

we ordinarily expect that sentence to be reasonable. Talley, 431 F.3d at 788. We

do not, however, presume that a sentence within a defendant’s guideline range is

reasonable. United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007). A

district court possesses “considerable discretion” in weighing the § 3553(a) factors,

and we defer to the district court’s judgment unless it made “a clear error 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.” Pugh,

515 F.3d at 1191 (quotation omitted).

      Here, Gallardo-Bernal has failed to meet his burden of demonstrating that

his sentence is substantively unreasonable. His 16-month sentence is within his

guideline range, and is far below the statutory maximum penalty of 10 years’

imprisonment. 8 U.S.C. § 1326(b)(1). Moreover, the district court did not make a

clear error of judgment in weighing the § 3553(a) factors. Gallardo-Bernal

previously had been deported on four occasions. He already had sustained a

conviction for illegally re-entering the United States, and had been sentenced to a

term of 15 months’ imprisonment. As a result, Gallardo-Bernal had demonstrated

his disregard for U.S. immigration laws. While in the United States, Gallardo-

Bernal committed crimes such as driving under the influence of alcohol, possession



                                          7
of cocaine, and battery, and was on probation for his more recent DUI conviction

at the time that he committed the present crime. As a result, there was a

demonstrated need for the court to impose a substantial sentence in order to protect

the public from Gallardo-Bernal’s future crimes. 18 U.S.C. § 3553(a)(2)(C).

Furthermore, the court considered Gallardo-Bernal’s mitigating arguments, and

expressly stated that, but for Gallardo-Bernal’s back injury, it would have imposed

a sentence at the high end of the applicable guideline range.

      Although Gallardo-Bernal contends that his sentence does not serve the

purpose of deterrence because his case did not receive any media attention, he does

not cite to any case law in support of this argument. Moreover, for the reasons

discussed above, Gallardo-Bernal has failed to demonstrate that his 16-month

sentence is outside the range of reasonable sentences that a court may impose.

Accordingly, Gallardo-Bernal’s sentence is substantively reasonable, and does not

constitute an abuse of the court’s discretion.

      AFFIRMED.




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