           Case: 12-16559   Date Filed: 09/06/2013   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-16559
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:12-cr-00246-WSD-AJB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

MARCO CESAR PRECIADO-ROJAS,
a.k.a. Joel Fontanez-Martinez,

                                                         Defendant-Appellant.

                      ________________________

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

                            (September 6, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Marco Preciado-Rojas appeals his 62-month sentence, imposed within the

guideline range after he pleaded guilty to being a previously deported alien who

unlawfully re-entered the United States, in violation of 8 U.S.C. § 1326(a) and

(b)(2). At the time of sentencing, state charges were pending against Preciado-

Rojas in Cobb County, Georgia, for burglary, armed robbery, false imprisonment,

kidnapping, and conspiracy, and Preciado-Rojas had been transferred to federal

custody under a writ of habeas corpus ad prosequendum.

      On appeal, Preciado-Rojas first contends that his sentence is substantively

unreasonable because it was greater than necessary in light of the 18 U.S.C. §

3553(a) sentencing factors, particularly his life history and the mitigating

circumstances of his re-entry offense. Moreover, he asserts that the district court at

sentencing sustained his objection to the presentence investigation report’s factual

account of his pending Cobb County charges and ruled that it would not consider

that information, but then mentioned those facts in justifying the sentence it

imposed. Second, Preciado-Rojas argues that the district court erred by denying

his request to order that his federal sentence run concurrently with a potential

future state sentence on the Cobb County charges. Preciado-Rojas argues that,

because he was in federal court on a writ of habeas corpus ad prosequendum, his

federal sentence will necessarily run consecutively to any state sentence absent an

order that the federal sentence run concurrently and that this is unreasonable given


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the same § 3553(a) factors that he claims make his 62-month sentence

unreasonable.

         After review of the record on appeal and after consideration of the parties’

appellate briefs, we affirm.

                                             I.

         We review the reasonableness of sentences under a deferential abuse of

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

(2007). A sentence must be both procedurally and substantively reasonable, id.,

though only the latter is at issue in this appeal. We examine whether or not the

sentence was substantively reasonable in light of the totality of the circumstances.

Id. “We may set aside a sentence only if we determine, after giving a full measure

of deference to the sentencing judge, that the sentence imposed truly is

unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en

banc).

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

than necessary, to comply with the purposes” listed in § 3553(a)(2), namely the

need to reflect the seriousness of the offense, promote respect for the law, provide

just punishment for the offense, deter criminal conduct, protect the public from the

defendant’s future criminal conduct, and provide the defendant with needed

educational or vocational training or medical care. See 18 U.S.C. § 3553(a)(2). In


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imposing a particular sentence, the court must also consider the nature and

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

kinds of sentences available, the applicable guideline range, any pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. Id.

§ 3553(a)(1), (3)-(7).

      Although in choosing a sentence the district court must consider the

§ 3553(a) factors, the district court is not required to address each factor separately

or to state that a particular factor is not applicable. United States v. Bonilla, 463

F.3d 1176, 1182 (11th Cir. 2006). Rather, an acknowledgement that the district

court has considered the defendant’s arguments and the factors generally will

suffice. See United States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005).

Moreover, the weight given to each § 3553(a) factor is “a matter committed to the

sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007).

      “The party challenging the sentence bears the burden to show it is

unreasonable in light of the record and the § 3553(a) factors.” United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010) (citing United States v. Thomas, 446

F.3d 1348, 1351 (11th Cir. 2006)). We reverse only if “left with the definite and

firm conviction that the district court committed a clear error of judgment in


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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.” Irey, 612 F.3d at 1190

(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). Although

we do not automatically presume a sentence falling within the guideline range to

be reasonable, we ordinarily expect such a sentence to be reasonable. United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). That a sentence imposed is

well below the statutory maximum penalty also indicates that the sentence is

reasonable. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

       Preciado-Rojas has not shown that his within-guidelines sentence is

substantively unreasonable. The district court imposed upon Preciado-Rojas a

sentence of 62 months, which is in the lower half of the advisory guideline range

of 57 to 71 months and well below the statutory maximum penalty of 20 years.

The district court explained that it had considered the § 3553(a) factors and

specifically noted the serious nature of Preciado-Rojas’s past crimes of “invading

the sanctuary of people’s homes,” and the need for him and others to be deterred

from illegally re-entering the country. 1 The district court considered Preciado-

Rojas’s argument that he should receive a lighter sentence because of his




       1
               In addition to Preciado-Rojas’s two prior convictions for burglary of a habitation,
he had been previously convicted of criminal trespass and unlawfully carrying a weapon. He had
also already been deported twice.
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impoverished upbringing in Colombia and the circumstances that led him to flee

his home country, and did not act unreasonably in rejecting it.

      Preciado-Rojas’s claim that the district court erred in considering his

pending state arrests is also without merit. Because he did not raise this objection

below, we review for plain error. United States v. Aguillard, 217 F.3d 1319, 1320

(11th Cir. 2000). “For this Court to correct plain error: (1) there must be error; (2)

the error must be plain; and (3) the error must affect substantial rights.” Id.

(quoting United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995)).

      Preciado-Rojas points to two instances during the sentencing hearing where

the district court referred to the pending state charges against Preciado-Rojas as

being similar to his prior criminal conduct. However, Preciado-Rojas points to

nothing in the record indicating that the district court relied on these pending

charges in crafting its sentence. Indeed, the record reflects that the district court

did not rely on the charges in its sentencing decision. The district court sustained

Preciado-Rojas’s objection to the presentence investigation report in regard to the

pending state charges and explicitly stated that it would not consider the arrests in

its sentencing determination. The charges were not considered in calculating the

guideline range for his sentence. Furthermore, when defense counsel began to

argue that Preciado-Rojas would succeed against the pending charges, the district

court corrected counsel and explained that it had been considering only his past


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convictions in discussing the serious nature of his criminal conduct. We see no

error, let alone plain error.

       Preciado-Rojas has not shown plain error, nor has he shown that his sentence

is substantively unreasonable.

                                           II.

       The Supreme Court has held that a district court “has authority to order that

the federal sentence be consecutive to an anticipated state sentence that has not yet

been imposed.” Setser, ___ U.S. ___, ___, 132 S. Ct. 1463, 1466, 1473 (2012); see

also United States v. Ballard, 6 F.3d 1502, 1507-10 (11th Cir. 1993); United States

v. Andrews, 330 F.3d 1305, 1307 (11th Cir. 2003). We review the reasonableness

of such determinations under the abuse of discretion standard. See Andrews, 330

F.3d at 1307 (applying abuse of discretion standard). The district court’s

discretion is “tempered” by the requirement that it consider the § 3553(a) factors.

Ballard, 6 F.3d at 1505.

       The Sentencing Reform Act of 1984, 18 U.S.C. § 3584, addresses the

“concurrent-vs.-consecutive decision” faced by a district court but does not address

the situation raised here, where a “state sentence is not imposed at the same time as

the federal sentence, and the defendant was not already subject to that state

sentence.”2 Setser, 132 S. Ct. at 1467. The Sentencing Guidelines promulgated by


       2
              Section 3584 provides:
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the Sentencing Commission also address when concurrent or consecutive sentences

should be imposed, but similarly do not address the instant situation. See U.S.S.G.

§ 5G1.3.3 We have stated, however, that “[t]he statute and the analogous

Sentencing Guidelines evince a preference for consecutive sentences when

imprisonment terms are imposed at different times.” Ballard, 6 F.3d at 1506.

       The district court did not act unreasonably when it denied Preciado-Rojas’s

request to order that his federal sentence run concurrently with any possible

sentence for the pending state charges. As discussed above, the district court stated

in imposing its sentence that it had considered all factors under § 3553(a). The

district court further noted that the federal and state crimes were “entirely different

crimes, and for two types of different conduct.” The district court then declined to

affirmatively order that the federal sentence be served concurrently to a sentence


       If multiple terms of imprisonment are imposed on a defendant at the same time, or
       if a term of imprisonment is imposed on a defendant who is already subject to an
       undischarged term of imprisonment, the terms may run concurrently or
       consecutively, except that the terms may not run consecutively for an attempt and
       for another offense that was the sole objective of the attempt. Multiple terms of
       imprisonment imposed at the same time run concurrently unless the court orders
       or the statute mandates that the terms are to run consecutively. Multiple terms of
       imprisonment imposed at different times run consecutively unless the court orders
       that the terms are to run concurrently.
18 U.S.C. § 3584(a).
3
       For example, the Sentencing Guidelines provide that:
       [i]f the instant offense was committed while the defendant was serving a term of
       imprisonment (including work release, furlough, or escape status) or after sentencing for,
       but before commencing service of, such term of imprisonment, the sentence for the
       instant offense shall be imposed to run consecutively to the undischarged term of
       imprisonment.
U.S.S.G. § 5G1.3(a).
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“that might not ever exist.”4 In doing so, the district court did not abuse its

discretion.

       Preciado-Rojas has not shown that the district court’s sentencing decisions

were substantively unreasonable.

       AFFIRMED.




       4
                 In Setser, the Supreme Court noted that a district court is not required to exercise
its authority to order that a federal sentence run consecutively or concurrently to a possible state
sentence. Setser, 132 S. Ct. at 1472 n. 6 (“Of course, a district court should exercise the power
to impose anticipatory consecutive (or concurrent) sentences intelligently. In some situations, a
district court may have inadequate information and may forbear, but in other situations, that will
not be the case.”).
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