            Case: 14-14327   Date Filed: 03/16/2015   Page: 1 of 10


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-14327
                          Non-Argument Calendar
                        ________________________

                D.C. Docket No. 1:14-cr-00148-WSD-JFK-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

GABRIEL LUNA JIMENEZ,

                                                           Defendant-Appellant.

                        ________________________

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

                              (March 16, 2015)

Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Gabriel Luna Jimenez appeals his 16-month sentence of imprisonment,

imposed near the low end of his advisory guideline sentencing range, after
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pleading guilty to one count of illegal reentry of a previously removed alien, in

violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Jimenez argues that the

district court imposed a substantively unreasonable sentence by giving undue

weight to unfounded aggravating circumstances and insufficient weight to the

mitigating circumstances of his family situation. After careful review of the record

and the briefs, we affirm Jimenez’s sentence.

                                         I.

      According to the presentence investigation report (“PSR”), Jimenez was

encountered by United States Immigration and Customs Enforcement officials

after being arrested for simple battery in 2014 in Gwinnett County, Georgia.

Immigration records revealed that Jimenez previously had been removed from the

United States on four occasions. Jimenez was first ordered removed in September

2011, after being arrested by local law enforcement on domestic-violence charges.

He subsequently returned to the United States. He was removed for the second

time in March 2012, was found again in the United States shortly after crossing the

border in April 2012, was removed again, was found again in May 2012, and then

was removed for a fourth time before the arrest in 2014 giving rise to this case. A

grand jury indicted Jimenez on one count of illegal reentry, to which he pled

guilty.




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      A probation officer prepared a PSR calculating Jimenez’s advisory guideline

range at 15 to 20 months of imprisonment. The statutory maximum penalty for

Jimenez’s offense was 20 years’ imprisonment. See 8 U.S.C. § 1326(b)(2).

      The PSR included information regarding Jimenez’s family circumstances,

including that one of his daughters has significant health problems requiring

multiple surgeries. Jimenez explained that he kept returning to the United States to

earn money to pay for her surgeries and medical bills, as well as to support his

youngest son, who lived in Georgia.

      At sentencing, the district court adopted the PSR’s factual findings and

guideline range calculations and heard argument from the parties as to an

appropriate sentence. Jimenez requested a sentence below the guideline range in

consideration of his motivation for returning to the United States. A sentence

within the guideline range was not necessary for deterrence, he contended, because

he knew that he had violated the law.

      The government recommended an 18-month sentence, within the guideline

range, asserting that both the present case and Jimenez’s 2011 removal followed

crimes of violence committed by Jimenez against the mother of his youngest son.

The government contended that, in light of Jimenez’s prior behavior and the

statutory sentencing factors, 18 U.S.C. § 3553(a), an 18-month sentence would

provide just punishment and fulfill the need for specific deterrence.


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      Jimenez then personally addressed the district court, acknowledging that he

had violated the law but emphasizing that he was uniquely motivated to return in

order to pay for his daughter’s life-saving surgeries. In response, the district judge

stated that he found Jimenez’s explanation for his actions “troubling” and

“unacceptable” because it showed that his “interest in making money was more

important than [his] willingness to abide by the laws of the United States.” Even a

significant personal need could not justify violating the laws of the United States,

the judge explained; otherwise, “this would be a lawless community.” The judge

further elaborated:

                   There are people that for years in this country have
             not been able to get jobs that need money to care for their
             families, and according to your value system, all of those,
             whether they are U.S. citizens or not, would be entitled to
             go and violate whatever laws are necessary to generate
             income that they believe that they need. No civilized
             society, in this country or in your country, tolerates that.

                    And while I understand that you were uniquely
             motivated by the concern for your daughter, the
             rationalization is illogical and nonsensical and to me
             valueless.

                    I wonder, Mr. Jimenez, whether or not you took
             some American’s job by being here illegally, meaning
             that that person or those people were unable to care for
             their families because according to your values your self-
             interest was more important than the interests of other
             people.

                      ...


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                   So while I, as a father and just another person, I’m
            sympathetic to your plight, there are Americans in this
            country every day that have to struggle with finding care
            for their children. And I know enough about those
            people and [Non-Governmental Organizations] in
            Mexico that provide resources and help and finances for
            children just like your daughter to know that I think if
            you had tried hard, you probably could have found a way
            to get the resources you needed for your daughter,
            including from U.S. sources, without violating our laws
            repeatedly.

      According to the district court, Jimenez’s actions showed a pattern of

disrespect for the laws of the United States. Jimenez and others needed to be

deterred from violating the laws of the United States, the judge stated, even if the

violation arose out of a significant personal need. Despite indicating that he

believed a sentence at the high end of the guideline range would be appropriate

based on Jimenez’s prior conduct, the judge ultimately imposed a sentence of 16

months of imprisonment, near the low end of the range. The judge determined that

consideration of the § 3553(a) factors, including the needs for deterrence and for

the sentence to be fair and just, the nature of the offense, and Jimenez’s personal

character and circumstances, yielded a determination that a sentence of 16 months

of imprisonment was “fair, reasonable and appropriate.” Jimenez appeals.

                                        II.

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

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591


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(2007). We first ensure that the district court committed no significant procedural

error, such as failing to consider the § 3553(a) factors or selecting a sentence based

on clearly erroneous facts. Id. at 51, 128 S. Ct. at 597. If a sentence is free of

procedural errors, we then determine whether the sentence imposed was

substantively reasonable under the totality of the circumstances. Id. The party

challenging the sentence bears the burden of showing that it is unreasonable.

United States v. Langston, 590 F.3d 1226, 1236 (11th Cir. 2009).

      The district court must impose a sentence that is “sufficient, but not greater

than necessary” to comply with the purposes of sentencing set forth in 18 U.S.C.

§ 3553(a)(2), including the need to promote respect for the law, provide just

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

further crimes of the defendant. See 18 U.S.C. § 3553(a)(2). The court must also

consider the nature and circumstances of the offense, the history and characteristics

of the defendant, and the applicable guideline range, among other factors. Id.

§ 3553(a)(1), (3)-(7).

      The district court has the discretion to determine the weight given to any

particular § 3553(a) factor and does not need to discuss each factor. United States

v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). We will vacate a sentence 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


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at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en

banc) (internal quotation marks omitted). But we may not “set aside a sentence

merely because we would have decided that another one is more appropriate.” Id.

at 1191.

                                              III.

       Jimenez argues that the district court imposed a substantively unreasonable

sentence by improperly weighing the § 3553(a) factors. The court abused its

discretion by giving unwarranted and significant weight to unfounded aggravating

circumstances, he contends, and failed to properly consider the mitigation evidence

presented.1 We disagree.

       The district court did not abuse its discretion by imposing a substantively

unreasonable sentence. Jimenez’s 16-month sentence was near the low end of the

guideline range, and we ordinarily expect a sentence within the guideline range to

be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). In

addition, the district court’s finding that Jimenez had a pattern of reentering the


       1
           The government contends that Jimenez’s arguments on appeal are, at least in part,
actually a challenge to the procedural reasonableness of his sentence, which should be reviewed
for plain error because Jimenez did not object at sentencing. See United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014) (reviewing a procedural reasonableness challenge for plain
error). While Jimenez’s arguments perhaps could be classified as more “procedural” than
“substantive,” we address the arguments as presented and, finding that the district court did not
abuse its discretion, need not decide whether plain-error review applies. See United States v.
Victor, 719 F.3d 1288, 1291 n.3 (11th Cir. 2013).
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United States unlawfully is well supported by the record. Jimenez was removed

from the United States on four prior occasions but kept returning even though he

knew that it was unlawful. And while in the United States, Jimenez was convicted

of domestic battery in 2011 and arrested for battery in 2014. These facts justified

the court’s decision to give greater weight to the need for deterrence and to

promote respect for the law. See 18 U.S.C. § 3553(a)(2); Williams, 526 F.3d at

1322.

        Nor do the district court’s comments during sentencing justify a remand.

Jimenez complains about two of the district judge’s comments in particular: First,

the judge wondered “whether or not [Jimenez] took some American’s job by being

here illegally,” thereby preventing others from earning money to get necessary

medical care. Second, the judge told Jimenez that there were “NGOs in Mexico

that provide resources and help and finances for children just like your daughter,”

and that, if Jimenez had “tried hard,” he could have found the necessary resources

for his daughter without unlawfully and repeatedly returning to the United States.

        We agree with Jimenez—and the government acknowledges—that there is

no support in the record for these comments. No evidence was presented with

respect to either of these statements, and the judge’s comments, on their face, do

not appear to have bearing on the § 3553(a) sentencing factors. Nonetheless, we

cannot say that these comments resulted in an unreasonable sentence.


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        We have held that a sentence can be unreasonable if it “was substantially

affected by [the court’s] consideration of impermissible factors,” because a

sentence based on improper factors fails to achieve the purposes of sentencing

under § 3553(a). United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006),

abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85, 128 S.

Ct. 558 (2007); see also United States v. Velasquez Velasquez, 524 F.3d 1248,

1252 (11th Cir. 2008) (“A sentence that is based entirely upon an impermissible

factor is unreasonable because such a sentence does not achieve the purposes of

§ 3553(a).” (quoting United States v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir.

2006)). Nonetheless, “a district court’s consideration of an impermissible factor at

sentencing is harmless if the record as a whole shows the error did not substantially

affect the district court’s selection of the sentence imposed.” Williams, 456 F.3d at

1362.

        Here, the record as a whole shows that, even assuming that the district court

erred by considering improper factors, the error did not affect the ultimate sentence

imposed. See id. When viewed in context, the unsupported statements are part of

a broader explanation of the judge’s reasons for rejecting Jimenez’s mitigation

arguments based on his unique motivation to return to the United States illegally.

The essence of the judge’s response was that Jimenez and others “have to

understand that you cannot ignore and violate the laws of the United States just


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because you have a personal need, even if it’s a significant one.” In other words,

the judge found that the need for the sentence “to afford adequate deterrence to

criminal conduct,” 18 U.S.C. § 3553(a)(2)(B), and “to promote respect for the

law,” id. § 3553(a)(2)(A), outweighed Jimenez’s personal reasons for returning to

the United States, however significant they were. This was a proper basis on

which to reject Jimenez’s request for a lower sentence.

      Nor are we persuaded that the judge treated Jimenez’s mitigation evidence

as an aggravating factor, as he contends. Indeed, the judge stated that he was

sympathetic to Jimenez as “a father and just another person,” and the length of the

sentence ultimately imposed was shorter than what the judge thought would have

been justified based on Jimenez’s prior attempts to return into the country and his

conduct while here.      Therefore, Jimenez’s sentence was not “substantially

affected” by any improper or unsupported factors. See Williams, 456 F.3d at 1361.

      In sum, Jimenez has not shown that the district court committed a clear error

in judgment in weighing the § 3553(a) factors and arriving at the sentence imposed

based on the facts of the case. See Irey, 612 F.3d at 1190. Accordingly, we affirm

Jimenez’s 16-month sentence of imprisonment.

      AFFIRMED.




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