                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                       ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                              No. 10-13538                 FEB 16, 2011
                                                            JOHN LEY
                          Non-Argument Calendar               CLERK
                        ________________________

                 D.C. Docket No. 2:10-cr-00008-WCO-SSC-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

SAVINO CABRERA-GUROLA,
a.k.a. Roberto Carlos Martinez,

                                                          Defendant-Appellant.

                        ________________________

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

                             (February 16, 2011)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
        After pleading guilty, Savino Cabrera-Gurola appeals his 46-month

sentence for one count of illegal reentry of a deported alien, in violation of 8

U.S.C. § 1326(a) and (b)(2). Cabrera-Gurola argues that his sentence, at the low

end of the advisory guidelines range, is substantively unreasonable. After review,

we affirm.

                                I. BACKGROUND

A.      Offense Conduct

        In 1998, Cabrera-Gurola, a Mexican citizen, was arrested in Georgia after

he attempted to sell two kilograms of cocaine to a confidential informant working

with federal agents. In 1999, Cabrera-Gurola pled guilty in federal district court to

conspiracy to distribute cocaine and possession with intent to distribute marijuana

and received a sentence of 38 months’ imprisonment and four years of supervised

release.

        After serving his imprisonment term, on October 5, 2001, Cabrera-Gurola

began serving his four-year supervised release term. On October 6, 2001,

Cabrera-Gurola was deported to Mexico. In July 2005, Cabrera-Gurola’s

probation officer filed a warrant and petition alleging Cabrera-Gurola had violated

the conditions of his supervised release by failing to report and to pay fines and

fees.

                                          2
       In 2006, Cabrera-Gurola re-entered the United States without authorization

and returned to Georgia, where he lived with a friend. On December 4, 2009,

Cabrera-Gurola was arrested for selling cocaine to an undercover officer with the

Hall County Sheriff’s Office (“HCSO”).1

       The HCSO notified Special Agent John Cweika with the Immigration and

Customs Enforcement of Cabrera-Gurola’s detention. In an interview, Cabrera-

Gurola admitted to Agent Cweika that he was a Mexican citizen and was

previously removed from the United States. In federal court, Cabrera-Gurola was

charged with, and pled guilty to, being an alien found in the United States after

having been deported and without having obtained permission to re-enter the

United States.

B.     Presentence Investigation Report

       The presentence investigation report (“PSI”) recommended: (1) a base

offense level of 8, pursuant to U.S.S.G. § 2L1.2(a); (2) a 16-level increase,

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), due to Cabrera-Gurola’s prior removal

following his felony drug trafficking convictions; and (3) a 3-level reduction for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b). Because



       1
         Cabrera-Gurola was charged in state court with sale of cocaine. The state charge was
still pending at the time of Cabrera-Gurola’s federal sentencing on the instant offense.

                                               3
Cabrera-Gurola committed the instant offense while on supervised release, he

received an additional 2 criminal history points, for a total of 5, which raised his

criminal history category from a II to a III. With a total offense level of 21 and a

criminal history category of III, the PSI recommended an advisory guidelines

range of 46 to 57 months’ imprisonment. Cabrera-Gurola did not file written

objections to the PSI.

       In a sentencing memorandum, Cabrera-Gurola argued that he should receive

a sentence below the advisory guidelines range because (1) the additional 2

criminal history points for committing the offense while on supervised release,

pursuant to U.S.S.G. § 4A1.1(d) (referred to as “recency points”), unreasonably

increased his criminal history score in light of the Sentencing Commission’s

recent vote to delete this provision from the Guidelines;2 (2) the 16-level increase

in U.S.S.G. § 2L1.2(b)(1)(A)(i) disproportionately increased the offense level


       2
          We point out that U.S.S.G. § 4A1.1(d) provides for a two-level increase if the defendant
“committed the instant offense while under any criminal justice sentence, including . . .
supervised release . . . .” U.S.S.G. § 4A1.1(d). In contrast, at the time of the sentencing,
U.S.S.G. § 4A1.1(e) provided for a two-level increase if the defendant “committed the instant
offense less than two years after release from imprisonment” on a sentence of imprisonment of at
least sixty days. U.S.S.G. § 4A1.1(e) (2009). Effective November 1, 2010, the Sentencing
Commission amended U.S.S.G. § 4A1.1 by, inter alia, eliminating subsection (e) and
redesignating subsection (f) as subsection (e). See U.S.S.G. app. C, amend. 742. Based on
Amendment 742, Cabrera-Gurola asked the district court either to adjust his criminal history to
II, resulting in an advisory guidelines range of 41 to 51 months, or to “arrive at a similar result”
using a downward variance. However, Cabrera-Gurola’s two-level increase was not pursuant to
soon-to-be-amended subsection (e), but to subsection (d).

                                                 4
compared to similar enhancements for more egregious conduct and inappropriately

double counted prior convictions, resulting in an unreasonably high guidelines

range; and (3) the nature and circumstances of his offense and his life history

merited a lower sentence. Cabrera-Gurola asked for a 24-month sentence.

C.    Sentencing Hearing

      At the sentencing hearing on his illegal reentry charge, Cabrera-Gurola

confirmed that he had no objection to the PSI’s guidelines calculations, only

“arguments on reasonableness.” The district court adopted the PSI and found that

Cabrera-Gurola’s offense level was a 21 and his criminal history category was a

III, resulting in an advisory guidelines range of 46 to 57 months.

      In support of his request for a 24-month sentence, below the advisory

guidelines range, Cabrera-Gurola reiterated his arguments that the recency points

pursuant to U.S.S.G. § 4A1.1(d) unreasonably inflated his criminal history

category and that the 16-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i),

while technically applicable, overestimated the seriousness of his offense.

Cabrera-Gurola also contended that he was unlikely to re-offend because his entire

family had returned to Mexico, decreasing his likelihood of returning to the United

States.




                                         5
      The government asked for a 51-month sentence, in the middle of the

advisory guidelines range. The government pointed out that, even if the two

recency points pursuant to U.S.S.G. § 4A1.1(d) were removed, a 51-month

sentence would fall within the resulting 41-to-51-month range.

      The government argued that the 16-level increase pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(i) was appropriate in Cabrera-Gurola’s case and was

proportional to the type of offense committed. The government stressed that

Cabrera-Gurola’s offense was serious, that he was previously convicted of two

aggravated felonies— drug trafficking offenses—and, after removal, returned to

the United States, where he was arrested again for a drug trafficking offense. The

government contended that the dangerousness of Cabrera-Guralo’s prior drug

trafficking crimes warranted the 16-level increase. The government argued that a

51-month sentence was appropriate because it would promote respect for the law

given Cabrera’s-Gurola’s continued engagement in criminal activity, decrease the

threat to the community posed by the dangerousness of Cabrera-Gurola’s drug

trafficking crimes and allow Cabrera-Gurola to receive drug treatment if he had a

drug-use problem.

      The district court imposed a 46-month sentence. The district court stated:




                                         6
              I’m taking into consideration what [Cabrera-Gurola] argued about
       in the change of points, and that would make so little that I’m going to
       the bottom end of the guideline range to compensate for that. As
       opposed to what the government’s requesting at the top end. That
       difference was very nominal, three or four months. I’ve really gone
       further than that to compensate for that factor because I do think that the
       court should take that into consideration and not -- as part of the
       calculations at the current time and appropriate to so calculate it at the
       current time, but I take it in consideration in the sentence that’s imposed,
       which I am doing.

       At the sentencing hearing, the district court also considered the petition for

revocation of supervised release for Cabrera-Gurola’s 1999 drug trafficking

convictions. The district court found that Cabrera-Gurola had violated the terms

of his supervised release and imposed a consecutive twelve-month sentence. The

district court noted, “This case is more aggravated than the others, a lot of the

others I have, and I think that’s an appropriate sentence. And the combination of

the two are appropriate sentences under the guideline range and under the

circumstances of this case.” Cabrera-Gurola filed this appeal.

                                      II. DISCUSSION

       We review the substantive reasonableness of a sentence under the abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007).3 The party challenging the sentence bears the burden of establishing that


       3
        Cabrera-Gurola does not challenge the district court’s guidelines calculations or in any
other way argue that his sentence is procedurally unreasonable. Cabrera-Gurola also does not

                                                7
the sentence is unreasonable in light of both the record and the § 3553(a) factors.

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).4 We ordinarily expect

a sentence within the advisory guidelines range will be reasonable. United States

v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

       Cabrera-Gurola argues that his sentence is substantively unreasonable

specifically due to the district court’s 16-level increase of his offense level,

pursuant to U.S.S.G. § 2L1.2(b)(1)(a)(i).5 Our reasonableness review, however,

applies only to the defendant’s ultimate sentence, not to “each individual decision

made during the sentencing process.” United States v. Winingear, 422 F.3d 1241,

1245 (11th Cir. 2005). Cabrera-Gurola did not challenge the district court’s

application of the § 2L1.2(b)(1)(A)(i) 16-level increase in the district court and, in

challenge the district court’s consecutive twelve-month sentence imposed following the
revocation of his supervised release.
       4
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
       5
           Section 2L1.2(b)(1)(A) provides for a sixteen-level increase in the offense level “[i]f the
defendant previously was deported . . . after . . . a conviction for a felony that is (i) a drug
trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence;
(iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism
offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense . . . .” U.S.S.G.
§ 2L1.2(b)(1)(A)(i)-(vii).

                                                  8
fact, conceded in the district court that the enhancement applied. And, Cabrera-

Gurola does not raise this guidelines calculation issue in this Court.

      Here, considering the totality of the circumstances, Cabrera-Gurola has not

shown that his total 46-month sentence is unreasonable. Cabrera-Gurola illegally

entered the United States, committed two drug trafficking offenses and was

deported back to Mexico. Cabrera-Gurola then illegally re-entered the United

States and was arrested for another drug trafficking offense.

      The district court emphasized the seriousness of the offense when it noted

that Cabrera-Gurola’s offense was “more aggravated” than most of the illegal

reentry cases it saw. The district court considered Cabrera-Gurola’s arguments in

mitigation, and clearly concluded that the mitigating facts militated in favor of a

sentence at the low end of the advisory guidelines range of 46 to 57 months, but

did not support a variance below that range. We cannot say the district court

abused its discretion in imposing a 46-month sentence.

      AFFIRMED.




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