           Case: 18-13449   Date Filed: 05/06/2019   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13449
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:17-cr-00042-SPC-CM-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

RUFINO ORTEGA-VILLA,

                                              Defendant - Appellant.

                       ________________________

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

                              (May 6, 2019)

Before WILSON, BRANCH, and HULL, Circuit Judges.

PER CURIAM:
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       Rufino Ortega-Villa appeals his 41-month sentence for illegal reentry into

the United States after a felony conviction and removal from the United States, in

violation of 8 U.S.C. § 1326(a), (b)(1).1 He argues that the district court abused its

discretion by ordering that his 41-month sentence run consecutively with the 73-

month Florida sentence he was already serving. We affirm.

                                   I.      BACKGROUND

       On May 23, 2018, Ortega-Villa, a citizen of Mexico, pleaded guilty to illegal

reentry after deportation and conviction for a felony, 8 U.S.C. § 1326(a), (b)(1),

which is a crime punishable by up to 10 years imprisonment. Id. § 1326(b)(1). The

Presentence Investigation Report calculated the sentencing guidelines range as 37

months to 46 months based on an offense level of 19 and a criminal history

category of III. According to the PSR, Ortega-Villa’s criminal history included a

number of Florida offenses. In 2001, Ortega-Villa was convicted of trespass

(reduced from burglary) and petty theft. Later that year, he was convicted of

leaving the scene of a crash with property damage and reckless driving. In 2002, he

was convicted of driving under the influence and driving without a valid driver’s

license. In 2013, he was convicted of possession of a controlled substance without


       1
         “[A]ny alien who . . . has been denied admission, excluded, deported, or removed or has
departed the United States while an order of exclusion, deportation, or removal is outstanding,
and thereafter . . . enters, attempts to enter, or is at any time found in, the United States, . . .
whose removal was subsequent to a conviction of three or more misdemeanors involving drugs,
crimes against the person, or both, or a felony (other than an aggravated felony), . . . shall be
fined under Title 18, imprisoned not more than 10 years, or both.” 8 U.S.C. § 1326(a), (b)(1).
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a prescription, 2 operating a vehicle while his license was suspended, and not

having vehicle registration. In 2017, he was convicted of burglary, theft, and drug

offenses for which he is currently serving a 73-month sentence in Florida. His

expected release date is November 28, 2022. Ortega-Villa had also been deported

from the United States on four previous occasions.

       At the sentencing hearing, neither party objected to the probation office’s

proposed guidelines calculations, and the district court adopted them. Ortega-

Villa’s counsel argued for a 37-month sentence—the low end of the guidelines

range—and for the sentence to run concurrently with the Florida sentence Ortega-

Villa is presently serving. The government agreed to the 37-month sentence but

argued that the sentence should run consecutively with the state sentence. The

district court sentenced Ortega-Villa to 41 months’ imprisonment to be served

consecutively with his state sentence. In doing so, the district court explained that

it had listened to the arguments of counsel and considered Ortega-Villa’s criminal

history and his continued disregard for the immigration laws of the United States,

and it further noted that Ortega-Villa had apparently learned nothing from his

previous encounters with the law. Ortega-Villa’s counsel objected that the sentence

was greater than necessary. This timely appeal followed.

                                    II.    DISCUSSION

       2
         The indictment in this case relied on Ortega-Villa’s 2013 conviction for possession of a
controlled substance as his prior felony conviction.
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      A district court must select a sentence that is “sufficient, but not greater than

necessary,” to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, deter criminal conduct, protect the public, and provide

needed educational, vocational, medical, or other correctional services. 18 U.S.C.

§ 3553(a). The district court must also consider (1) the nature and circumstances of

the offense and the characteristics of the defendant, (2) the kinds of sentences

available, (3) the sentencing guideline range, (4) the pertinent policy statements of

the Sentencing Commission, (5) the need to avoid sentencing disparities among

similarly situated defendants, and (6) the need for restitution to any victims. Id.

Although the district court must consider all of the § 3553(a) factors, it is not

required to discuss each factor on the record. United States v. Kuhlman, 711 F.3d

1321, 1326 (11th Cir. 2013). The weight given to each factor is a matter committed

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

(11th Cir. 2007). And the district court is free to “attach ‘great weight’ to one

factor over others.” United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th

Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 57 (2007)). The fact that a

sentence is below the statutory maximum is also a factor supporting its

reasonableness. Id. at 1256–57.

      We review the reasonableness of a sentence for abuse of discretion. Gall,

552 U.S. at 51. We first determine if the district court committed a significant
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procedural error. Id. A district court commits procedural error if it miscalculates

the guideline range, treats the guidelines as mandatory, fails to consider the

relevant factors under 18 U.S.C. § 3553(a), selects a sentence based on clearly

erroneous facts, or fails to explain adequately the sentence selected. Id. After

determining whether procedural error occurred, we ask whether the sentence is

substantively reasonable in light of the totality of the circumstances and the

§ 3553(a) factors. Id.

      Ortega-Villa argues that the district court committed procedural error by

failing to explain its decision to order that his sentence run consecutively with his

state sentence. Specifically, he contends that the district court discussed the

§ 3553(a) factors only with respect to the length of his sentence and not with

respect to the decision that it run consecutively.

      At the sentencing hearing, counsel for Ortega-Villa and for the government

argued about both the length of the federal sentence and whether the sentence

should run consecutively or concurrently with the state sentence. The district court

then explained that it had considered the arguments of counsel, along with the

presentence report and the guidelines range. The district court further explained

that it had reviewed Ortega-Villa’s criminal history as well as the nature and

circumstances of the offense and the other § 3553(a) factors. Because of Ortega-

Villa’s criminal history and disregard for the immigration laws, the district court


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sentenced him to a 41-month sentence to run consecutively. Although the district

court did not separate its analysis of the question of a consecutive versus

concurrent sentence from its decision on the length of the sentence, it discussed the

§ 3553(a) factors immediately prior to stating that the sentence would run

consecutively. Thus, the district court demonstrated that it applied those factors to

the sentence as a whole, including its decision that the sentence should run

consecutively.

      Ortega-Villa also argues that his sentence was substantively unreasonable as

a result of the district court’s order that it run consecutively with his state sentence.

We review de novo a district court’s decision to impose a consecutive sentence,

United States v. Ballard, 6 F.3d 1502, 1505 (11th Cir. 1993), though we review the

substantive reasonableness of the sentence as a whole for abuse of discretion. Gall,

552 U.S. at 51. When a district court sentences “a defendant who is already subject

to an undischarged term of imprisonment,” the court generally may order that the

terms run concurrently or consecutively. 18 U.S.C. § 3584(a). “Multiple terms of

imprisonment imposed at different times run consecutively unless the court orders

that the terms are to run concurrently.” Id. In deciding whether to impose a

consecutive sentence, the court must consider the § 3553(a) factors. Id. § 3584(b).

      Here, the district court did not err in imposing a consecutive sentence and

the sentence was substantively reasonable based on 18 U.S.C. §§ 3584(a) and


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3553(a). We first note that, under § 3584(a), Ortega-Villa’s sentence would have

been consecutive unless the district court ruled otherwise because the sentence was

entered at a different time than his state sentence. In any event, the district court’s

decision to impose a consecutive sentence is also substantively reasonable under

the § 3553(a) factors. Under those factors, the sentence reflects the need to

promote respect for the law, to protect the public, and to provide just punishment

to a defendant who has repeatedly and brazenly ignored the immigration and

criminal laws of the United States. See 18 U.S.C. § 3553(a). Ortega-Villa’s federal

sentence is also reasonable because the federal offense bears no relation to the state

offense. Moreover, as the district court explained, the consecutive sentence is

reasonable based on the need to deter Ortega-Villa, who had been deported from

the United States on four previous occasions amid a history of multiple criminal

offenses, from continuing to engage in criminal conduct. Finally, the sentence was

well below the statutory maximum of 10 years, which further supports its

reasonableness. Rosales-Bruno, 789 F.3d at 1256–57.

                                III.   CONCLUSION

      The district court did not abuse its discretion because it imposed a

procedurally and substantively reasonable sentence and did not err in ordering that

the sentence run consecutively with the state sentence that Ortega-Villa was

already serving based on the § 3553(a) factors. Accordingly, we affirm.


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AFFIRMED.




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