                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                 No. 10-10189                 AUGUST 27, 2010
                            Non-Argument Calendar                JOHN LEY
                          ________________________                 CLERK
                     D.C. Docket No. 1:09-cr-20696-CMA-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                       versus

RAUL RODRIGUEZ

                                                          Defendant-Appellants.

                         __________________________

               Appeal from the United States District Court for the
                          Southern District of Florida
                         _________________________

                                (August 27, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

      Raul Rodriguez appeals his 51-month sentence, imposed after he pled guilty

to six counts of knowingly or recklessly encouraging the unlawful entry of aliens

into the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and
(a)(1)(B)(i), and to three counts of aiding or assisting certain aliens convicted of

an aggravated felony to enter the United States, in violation of 8 U.S.C. § 1327.

On appeal, Rodriguez argues that his sentence was substantively unreasonable in

light of the factors in 18 U.S.C. § 3553(a). Rodriguez contends that a downward

variance was appropriate based on his medical condition and to cure a disparity

resulting from the imposition of the same three-level Guidelines enhancement on

defendants whose offense involves transporting six aliens as on defendants whose

offense involves transporting twenty-four aliens. After review, we affirm.

      We review a sentence imposed by a district court for reasonableness, using

an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007). The burden of proof is on the party challenging the

reasonableness of the sentence. United States v. Thomas, 446 F.3d 1348, 1351

(11th Cir. 2006).

      To determine whether a sentence imposed is substantively reasonable, this

Court considers the factors set forth by Congress in 18 U.S.C. § 3553(a). United

States v. Pugh, 515 F.3d 1179, 1188-89 (11th Cir. 2008). These factors include,

among other things: the nature and circumstances of the offense; the history and

characteristics of the defendant; the need for a sentence to reflect the seriousness

of the offense, provide just punishment, and promote respect for the law; the need


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for deterrence; the need to avoid unwarranted sentencing disparities; and the

advisory Guidelines range. 18 U.S.C. § 3553(a). This Court recognizes that

district courts may choose from a range of reasonable sentences, and although we

apply no presumption on the matter, we ordinarily expect that a sentence within

the Guidelines range is reasonable. United States v. Talley, 431 F.3d 784, 787-88

(11th Cir. 2005). We defer to the district court’s judgment regarding the weight

given to the § 3553(a) factors unless the court has made a clear error of judgment.

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). We will remand

for resentencing 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.” Pugh, 515 F.3d at 1191 (internal quotation

marks omitted).

      Rodriguez’s 51-month sentence is not substantively unreasonable.

Rodriguez argues that his medical condition justifies a shorter sentence, but fails

to explain why his medical conditions make the sentence imposed unreasonable.

Likewise, we are not persuaded by Rodriguez’s argument that his sentence is

unreasonable because he would have received a lesser sentence had he committed

a lesser offense. We judge the reasonableness of Rodriguez’s sentence against the


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facts of this case, not a hypothetical set of facts. Finally, Rodriguez’s argument

that his sentence is unreasonable because U.S.S.G. § 2L1.1(b)(2)(A) imposes the

same enhancement on Rodriguez for unlawfully transporting six aliens as it would

on a defendant who unlawfully transports twenty-four aliens is not convincing.

We note that in a system that uses tiered enhancements, a range of conduct – be it

amount of loss, number of victims, or, as in this case, number of aliens illegally

transported – will be subject to the same Guideline enhancement. The fact that

lines must be drawn does not make the resulting advisory sentence inherently

unreasonable. Also relevant to this point, the district court properly considered

potential unwarranted sentencing disparities between Rodriguez and similarly

situated defendants if Rodriguez were sentenced below the Guidelines range

simply because he engaged in conduct at the low end of the range for the

particular enhancement at issue. In any event, our review is of the final sentence

imposed, not to each decision made in the sentencing process. United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). Ultimately, the district court is

accorded great deference in its weighing of the § 3553(a) factors, and Rodriguez

has not shown that the court committed a clear error of judgment in the weight it

assigned to the factors in this case, including the need to avoid unwarranted

sentencing disparities. Because Rodriguez has not demonstrated that the sentence


                                          4
imposed lies outside the range of reasonable sentences dictated by the facts of the

case, he has not persuaded us that his sentence is substantively unreasonable.

Accordingly, we affirm.

      AFFIRMED.




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