                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            MARCH 22, 2011
                              No. 10-13243                    JOHN LEY
                          Non-Argument Calendar                 CLERK
                        ________________________

                 D.C. Docket No. 2:09-cr-00106-JES-SPC-1

UNITED STATES OF AMERICA,

                                              lllllllllllllllllllllPlaintiff-Appellee,


                                   versus

JOSE SANDOVAL-ESCOBAR,

                                            llllllllllllllllllllDefendant-Appellant.

                       ________________________

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

                              (March 22, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

     Jose Sandoval-Escobar appeals his below-guideline 30-month sentence,
imposed after he pleaded guilty to illegal reentry, in violation of 8 U.S.C.

§ 1326(a) and (b)(2).

      Sandoval-Escobar, a citizen of Guatemala, entered the United States in

1990. In 2000, he was deported following his conviction for cocaine trafficking.

In 2007, he illegally reentered and was later arrested in Florida for conduct

unrelated to the instant offense. After he was turned over to federal authorities, he

pleaded guilty to illegal reentry.

      The probation officer calculated Sandoval-Escobar’s sentencing range as 41

to 51 months, due in part to a base offense level of 8 under U.S.S.G. § 2L1.2 and a

16-level enhancement due to the prior drug-trafficking conviction,

§ 2L1.2(b)(1)(A)(i). The prior conviction also increased Sandoval-Escobar’s

criminal history category to II.

      Sandoval-Escobar raised no objections to the sentencing calculations, but he

requested a downward variance from the guideline range, arguing that 18 months

would be sufficient under 18 U.S.C. § 3553(a). The court granted a downward

variance to 30 months’ imprisonment. Although the court expressed concern that

a single, thirteen year-old conviction formed the basis for the sentencing

enhancement, the court nevertheless found that a 30-month sentence was

appropriate under § 3553(a). This appeal followed.

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      Sandoval-Escobar argues that his sentence is substantively unreasonable

because the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) places

undue weight on a single prior conviction, resulting in a sentence that is greater

than necessary to comply with 18 U.S.C. § 3553(a). He points to statistics

indicating lower rates of recidivism in older offenders and offenders sentenced to

shorter terms of imprisonment. He also contends that the § 2L1.2(b)(1)(A)(i)

enhancement results in “unwarranted similarities” with other more serious crimes.

Sandoval-Escobar further argues that the § 2L1.2(b)(1)(A)(i) enhancement results

in illegal double-counting of the prior conviction, but acknowledges that such

argument is foreclosed by United States v. Adeleke, 968 F.2d 1159 (11th Cir.

1992). Finally, he argues for the first time in his reply brief that the district court

failed to adequately explain its reasoning regarding the extent of the downward

variance.

      We engage in a two-step process in reviewing sentences of imprisonment.

United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). First, we look for

any significant procedural errors, such as improper application of the guidelines,

failure to consider § 3553(a) factors, basing a sentence on clearly erroneous facts,

or failure to adequately explain the chosen sentence. Id. Second, we review the

substantive reasonableness of a sentence under “a deferential abuse-of-discretion

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standard” regardless of whether the sentence is “inside, just outside, or

significantly outside the Guidelines range.” Id. at 1090-91 (quoting Gall v. United

States, 552 U.S. 38, 41 (2007)). In this step, we take into account the “totality of

the circumstances” and “give due deference to the district court's decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Livesay, 525 F.3d

at 1091.

      The burden rests on the party challenging the sentence to show that the

“sentence is unreasonable in light of the record and the § 3553(a) factors.” United

States v. Bohannon, 476 F.3d 1246, 1253 (11th Cir. 2007). We will “vacate the

sentence if, but only if, we are left with the definite and firm conviction that the

district court committed 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.” United States v. Irey, 612 F.3d 1160, 1190

(2010) (en banc), petition for cert. filed, (U.S. Nov. 24, 2010) (No. 10-727). It is

only in rare cases that this standard is met. See id. at 1190-91 (noting that “[o]ut

of hundreds of sentences” reviewed since Booker, “only four [have been] found to

be substantively unreasonable”).

      Sandoval-Escobar raises two issues of procedural reasonableness. But we

need not address his first argument - that the district court failed to properly

                                           4
explain its reasoning - because he raised it for the first time in his reply brief. See,

e.g., United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (“[a]rguments

raised for the first time in a reply brief are not properly before a reviewing court”).

      As to his second argument, although we note that Sandoval-Escobar failed

to raise the double-counting argument in the district court, the argument fails no

matter what standard of review we apply; this court specifically considered and

rejected the double-counting argument in Adeleke, 968 F.2d at 1161.

      Sandoval-Escobar also challenges the substantive reasonableness of his

sentence. But he has not presented any evidence that the below-guidelines

sentence was unreasonable under the totality of the circumstances. In essence, he

argues that although the district court considered his arguments and specifically

gave weight to his criminal history in granting a downward variance, the district

court committed a clear error in failing to give greater weight to these factors and

grant him an eighteen-month sentence. This argument fails.

      The district court specifically considered the impact of the

§ 2L1.2(b)(1)(A)(i) enhancement in the context of Sandoval-Escobar’s criminal

history and addressed its concerns by granting an eleven-month downward

variance. Moreover, although the statistical evidence raised by Sandoval-Escobar

regarding recidivism was not proffered at the sentencing hearing, the district court

                                           5
heard and considered factors in Sandoval-Escobar’s personal circumstances,

which indicated a lower likelihood of recidivism.

      Third, Sandoval-Escobar’s argument that his sentence results in a

“unwarranted similarities” with “more serious crimes” relies on a case where the

Supreme Court considered the reasonableness of a lower sentence of a

“co-conspirator” who had withdrawn from the conspiracy as compared to other

co-conspirators. Gall, 552 U.S. at 55. We have not extended this “unwarranted

similarities” rationale to require sentencing courts to engage in a broad

comparison to other unrelated crimes and criminals subject to the same guideline.

In fact, “ordinarily we will expect a sentence within the Guidelines range to be

reasonable.” United States v. Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009), cert.

denied 131 S.Ct. 436 (2010). Here, Sandoval-Escobar received a sentence well

below both the minimum guideline range and the twenty-year maximum sentence.

Thus, Sandoval-Escobar failed to demonstrate that his sentence was unreasonable.

      AFFIRMED.




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