            Case: 15-15702   Date Filed: 10/05/2016   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15702
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:14-cr-00382-MSS-TBM-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                  versus

EYAD FARAH,

                                                          Defendant-Appellant.

                       ________________________

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

                             (October 5, 2016)

Before TJOFLAT, WILSON, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Eyad Farah appeals the 37-month sentence he received after pleading guilty

to (1) conspiracy to unlawfully export firearms, in violation of 18 U.S.C. § 371 and

22 U.S.C. § 2778(b)(2) and (c); (2) attempt to unlawfully export firearms without a

license, in violation of 22 U.S.C. § 2778(b)(2) and (c); and (3) aiding and abetting

the fraudulent exportation of firearms, in violation of 18 U.S.C. §§ 554 and 2.

      On appeal, Farah argues that his sentence is both procedurally and

substantively unreasonable. He first asserts that his sentence is procedurally

unreasonable because the district court failed to consider the 18 U.S.C. § 3553(a)

factors. Second, Farah argues that his sentence is substantively unreasonable

because, under the totality of the circumstances, a 37-month sentence is excessive

given his history, the character and nature of his offenses, and the fact that he is a

first-time offender who played a minor role in a much larger conspiracy. After

careful review of the record and the parties’ briefs, we affirm.

                          I. Procedural Reasonableness

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

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

(2007). A sentence is procedurally unreasonable if the sentencing court, inter alia,

fails to consider the factors set forth in 18 U.S.C. § 3553(a) or fails to adequately

explain the sentence. Id. “The party challenging the sentence bears the burden to




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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).

      The district court is not required to explicitly state or discuss on the record

that it has considered each of the § 3553(a) factors. See United States v. Docampo,

573 F.3d 1091, 1100 (11th Cir. 2009). Rather, it is sufficient for the district court

to simply acknowledge that it has considered the § 3553(a) factors as well as the

defendant’s arguments. United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir.

2009). However, the sentencing court should still “set forth enough to satisfy the

appellate court that [it] has considered the parties’ arguments and has a reasoned

basis for exercising [its] own legal decisionmaking authority.” United States v.

Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (internal quotation marks omitted).

A district court commits no reversible error for failing to articulate the applicability

of the § 3553(a) factors so long as the record demonstrates that the court took the

factors into consideration. See United States v. Smith, 568 F.3d 923, 927–28 (11th

Cir. 2009).

      Farah’s sentence is procedurally reasonable. Farah asserts that the district

court erred by failing to consider the § 3553(a) factors, namely the factor regarding

the kinds of sentences available. However, the record demonstrates that the district

court did consider the available sentences. Specifically, the district court noted

that it reviewed and considered the presentence investigation report and Farah’s


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sentencing memorandum, which discussed the possibility of house arrest or

probation. Moreover, the district court explicitly rejected house arrest and

probation at the sentencing hearing, finding them inappropriate under the

circumstances. Based on this record, the district court fulfilled its obligation to

take the § 3553(a) factors into account. See id.

      Nevertheless, Farah contends that the district court failed to consider the

available-sentences factor because the court stated that a sentence of house arrest

or probation was “out of the question” before Farah had an opportunity to argue for

those types of sentences at the sentencing hearing. That contention is unavailing.

Although the district court made the statement prior to Farah making his arguments

at the hearing, Farah’s sentencing memorandum set forth his argument for house

arrest or probation, and the court considered the memorandum. Thus, the district

court’s statement was simply its indication to counsel that it rejected Farah’s

previously articulated argument for house arrest or probation. Accordingly, the

district court did not commit procedural error because it properly considered the

kinds of sentences available.

                          II. Substantive Reasonableness

      When reviewing the substantive reasonableness of a sentence, we must

consider the “totality of the circumstances.” United States v. Pugh, 515 F.3d 1179,

1190–92 (11th Cir. 2008) (internal quotation marks omitted). “A district court


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abuses its discretion when it (1) fails to afford consideration to relevant factors that

were due significant weight, (2) gives significant weight to an improper or

irrelevant factor, or (3) commits a clear error of judgment in considering the proper

factors,” which can occur when the district court balances the factors unreasonably.

See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). We will

vacate a sentence for being substantively unreasonable “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.” Id. at

1190 (internal quotation marks omitted). We normally expect a sentence within

the recommended United States Sentencing Guidelines (Guidelines) range to be

reasonable. Docampo, 573 F.3d at 1101.

      Here, the district court did not abuse its discretion when it imposed a 37-

month sentence, which was not only within the recommended guidelines range, but

on the low end of that range. Again, as the challenging party, the burden lies with

the defendant to contest the reasonableness of the sentence in light of the record

and the § 3553(a) factors. Tome, 611 F.3d at 1378. Farah has not met this burden.

To the contrary, the record reflects that the district court considered all relevant

factors carefully and ultimately disagreed with Farah’s position. Farah put forth

mitigating evidence in an effort to convince the district court to ignore the


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Guidelines’s recommendation against house arrest or probation for smuggling guns

to the Middle East, however, the district court, within its discretion, appropriately

found such evidence unpersuasive. See United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007) (“The weight to be accorded any given § 3553(a) factor,” such as

the nature and circumstances of the offense, “is a matter committed to the sound

discretion of the district court.” (internal quotation marks omitted)). Even so, the

district court imposed a sentence on the low end of the guidelines range. See

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (“[W]e do not

automatically presume [that] a sentence within the [applicable] guidelines range is

reasonable, [but] we ordinarily expect a sentence within [that] range to be

reasonable.” (internal quotation marks omitted)). Accordingly, the district court

did not abuse its discretion in sentencing Farah to a 37-month term of

imprisonment.

      AFFIRMED.




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