                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                      MARCH 28, 2008
                                                    THOMAS K. KAHN
                              No. 07-13186
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                  D. C. Docket No. 06-00442-CR-T-17-MAP

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

RIGOBERTO GAMEZ-PEREIRA,

                                                       Defendant-Appellant.

                        ________________________

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

                              (March 28, 2008)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Rigoberto Gamez-Pereira appeals his concurrent thirty-seven-month
sentences for conspiracy to possess with intent to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute

500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).1

On appeal, Gamez-Pereira argues that, under 18 U.S.C. § 3553(a), he should have

been granted a downward variance below the relevant Sentencing Guidelines range

because, as a permanent resident alien facing deportation following his

incarceration, his imprisonment would be more onerous than that of a U.S. citizen

convicted of the same crimes. Gamez-Pereira also contends that his sentence is

unreasonable because the district court failed to consider his “low level

involvement” in the crime,2 as well as his “exceptional” acceptance of

responsibility.3

       Although Gamez-Pereira did not file any objections to the district court’s

calculation of his advisory Guidelines range, he did move the court at sentencing,


       1
         This sentence falls at the lower end of the relevant range suggested by the U.S.
Sentencing Guidelines.
       2
           Although Gamez-Pereira argues that the district court failed to adequately consider his
supposed mitigating role, he did not argue in the district court, and he does not argue now, that
he is entitled to a mitigating-role reduction under section 3B1.2 of the U.S. Sentencing
Guidelines. Instead, Gamez-Pereira merely argues that his mitigating role should factor into the
court’s analysis under § 3553(a).
       3
          We note that the district court, before reaching the § 3553(a) factors, reduced Gamez-
Pereira’s base offense level by three points for his acceptance of responsibility, as allowed under
section 3E1.1(a) and (b). Above and beyond this reduction, Gamez-Pereira now argues that his
“exceptional” acceptance of responsibility should also factor into the court’s § 3553(a) analysis.


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pursuant § 3553(a), to impose a sentence below the range. Specifically, in his

attempt to convince the district court that a below-Guidelines sentence was

appropriate, Gamez-Pereira highlighted the following facts: the number of people

willing to vouch for him; his lack of a criminal history; his character, including the

fact that he was supporting ten children, four of whom belonged to his deceased

sister-in-law; the fact that he had no possessory interest in the cocaine and no

connection to the source; and his complete compliance with the investigation and

with presentence procedures. Notably, Gamez-Pereira failed to argue before the

district court that his immigration status should factor into the court’s decision

whether to impose a lower sentence.

      In general, we review the final sentence imposed by the district court for

reasonableness, United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005),

but we review any arguments not raised at the district court only for plain error,

see, e.g., United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006); United

States v. Underwood, 446 F.3d 1340, 1343 (11th Cir. 2006). Our review for

reasonableness entails both procedural and substantive aspects. United States v.

Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). Procedurally, a sentence may be

unreasonable if the district court improperly calculates the Guidelines

imprisonment range, treats the Guidelines as mandatory, fails to consider the



                                           3
appropriate statutory factors, bases the sentence on clearly erroneous facts, or fails

to adequately explain its reasoning. Gall v. United States, 552 U.S. __, __, 128 S.

Ct. 586, 597 (2007). Although the district court must consider the § 3553(a)

factors at sentencing,4 it need not discuss each of them on the record; rather, an

“acknowledgment by the district court that it has considered the defendant’s

arguments and the factors in section 3553(a) is sufficient.” United States v. Talley,

431 F.3d 784, 786 (11th Cir. 2005). Substantively, a sentence may be

unreasonable if, in light of the facts and circumstances of the defendant’s case, the

length of the sentence is greater than necessary to achieve the purposes of

sentencing as stated in § 3553(a). United States v. Williams, 456 F.3d 1353, 1360,

1363 (11th Cir. 2006).

       We review de novo whether a sentence is procedurally unreasonable, United

States v. Hunt, 459 F.3d 1180, 1183 (11th Cir. 2006), but our review for



       4
         Section 3553(a) includes the following factors, which the district court must consider
to determine whether a given sentence is reasonable:

       (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 unw[arr]anted
       sentencing disparities; and (10) the need to provide restitution to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)).

                                                 4
substantive reasonableness is more deferential, Williams, 456 F.3d at 1363. “The

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court,” and “[w]e will not substitute our judgment

in weighing the relevant factors because ‘[o]ur review is not de novo.’ ” Id.

(quoting Talley, 431 F.3d at 788). “[T]here is a range of reasonable sentences

from which the district court may choose,” and “[a] district court may impose a

sentence that is either more severe or lenient than the sentence [this Court] would

have imposed.” Talley, 431 F.3d at 788. Furthermore, “[t]he party challenging the

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

the § 3553(a) factors.” Id. at 1361.

      Although we broadly construe Gamez-Pereira’s various contentions on

appeal as challenging his sentence both procedurally and substantively, we discern

no reversible error. Procedurally, Gamez-Pereira concedes that the district court

correctly calculated the relevant advisory Guidelines range. Furthermore, although

Gamez-Pereira now contends that the district court failed to consider his “low level

involvement” in the crime, as well as his “exceptional” acceptance of

responsibility, the district court expressly stated at sentencing that it considered

Gamez-Pereira’s arguments and the sentencing factors set forth in § 3553(a). We

reiterate that the district court need not address every factor it considers on the



                                            5
record. Furthermore, the district court adequately explained its reasoning at

sentencing; it specifically addressed the nature and circumstances of the offense,

the seriousness of the offense, and the need for just punishment in this case.

Accordingly, we find no error in the district court’s sentencing procedure.

      Similarly, Gamez-Pereira’s sentence is not substantively unreasonable.

Gamez-Pereira asserts for the first time on appeal that his sentence is longer than

necessary because his immigration status will result in a disparity in time served as

compared to U.S. citizens convicted of the same crimes. It does not constitute

plain error for the district court to refuse to impose a below-guidelines sentence in

light of the alleged fact that the Bureau of Prisons will treat prisoners differently

when they are facing deportation. Gamez-Pereira has not met his burden to

establish that his sentence is unreasonable in light of the § 3553(a) factors.

Accordingly, the district court imposed a procedurally and substantively

reasonable sentence, and we affirm.

      AFFIRMED.




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