            Case: 13-12853   Date Filed: 02/07/2014   Page: 1 of 9


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12853
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:12-cr-00210-WKW-TFM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ALBERTO GARCIA-RAMIREZ,

                                                          Defendant-Appellant.

                       ________________________

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

                             (February 7, 2014)

Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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      Alberto Garcia-Ramirez appeals his 51-month sentence of imprisonment

after pleading guilty to unlawful reentry of a deported alien, in violation of

8 U.S.C. § 1326(a) and (b)(2). On appeal, Garcia-Ramirez raises a number of

challenges related to the procedural and substantive reasonableness of his sentence.

Because we agree with the district court that Garcia-Ramirez’s sentence was

reasonable, we affirm.

                                          I.

      “We review the reasonableness of a sentence for abuse of discretion using a

two-step process.” United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010).

“We look first at whether the district court committed any significant procedural

error and then at whether the sentence is substantively reasonable under the totality

of the circumstances.” Id. We first address Garcia-Ramirez’s arguments regarding

the procedural reasonableness of his sentence.

                                          A.

      Garcia-Ramirez argues that the district court failed to adequately explain

why it chose not to grant his request for a downward variance. At the beginning of

his sentence hearing, Garcia-Ramirez conceded that his offense level was 21,

which included a 16-level increase based on a prior conviction for sexual abuse of

a minor. See United States Sentencing Guidelines (USSG) § 2L1.2(b)(1)(A)(ii).

However, Garcia-Ramirez also moved for a downward variance, arguing that the


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Sentencing Commission has generally provided no empirical evidence to support

the enhancement. Garcia-Ramirez now argues that the district court failed to

address this argument and did not issue a ruling on his motion. We cannot agree.

      Sentencing courts “must adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.”

Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586, 597 (2007); see also 18

U.S.C. § 3553(c) (providing that a district court “at the time of sentencing, shall

state in open court the reasons for its imposition of the particular sentence”).

Generally, when a sentencing court imposes a sentence within the advisory

guideline range, the “district court is not required to give a lengthy explanation for

its sentence if the case is typical of those contemplated by the Sentencing

Commission.” United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008).

However, if a party “presents nonfrivolous reasons for imposing a different

sentence . . . the judge will normally go further and explain why he has rejected

those arguments.” Rita v. United States, 551 U.S. 338, 357, 127 S. Ct. 2456, 2468

(2007).

      In this case, the district court addressed Garcia-Ramirez’s argument that a

16-level increase was not justified. The court acknowledged at sentencing that “in

some cases, it may not be appropriate for there to be 16 levels after a felony crime

of violence.” However, after considering Garcia-Ramirez’s lengthy criminal


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history, the “serious” nature of the felony crime of violence that triggered the

enhancement, and his inability to control his alcohol abuse, the district court found

that this was “one case where [the 16-level enhancement] is appropriate, in my

view.” As a result, Garcia-Ramirez is incorrect that the district court did not

address his motion for a downward variance. To the contrary, the district court

clearly addressed and adequately explained its reasoning for refusing to grant the

motion. See United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009) (noting

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

arguments and the factors in section 3553(a) is sufficient” (quotation marks

omitted)).

                                          B.

      Second, Garcia-Ramirez argues that the district court procedurally erred by

relying solely on his criminal history in selecting a sentence. This argument is also

not supported by the record.

      This Court has stated that “[t]he district court must evaluate all of the

§ 3553(a) factors when arriving at a sentence.” United States v. Shaw, 560 F.3d

1230, 1237 (11th Cir. 2009). “A district court 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.” United States v. Irey, 612


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F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted). The district

court, however, is also “permitted to attach ‘great weight’ to one factor over

others.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (quoting

Gall, 552 U.S. at 57, 128 S. Ct. at 600) (internal citations omitted). “[A] court’s

explicit acknowledgment that it has considered a defendant’s arguments and the

§ 3553(a) factors is sufficient to demonstrate that it has adequately and properly

considered those factors.” United States v. Ellisor, 522 F.3d 1255, 1278 (11th Cir.

2008).

      Upon review of the record, we cannot say that the district court focused on

Garcia-Ramirez’s criminal history to the detriment of the other relevant sentencing

factors under § 3553(a). While the district court certainly emphasized Garcia-

Ramirez’s criminal history before imposing the sentence, it was within the court’s

discretion to attach “great weight” to that factor. See Shaw, 560 F.3d at 1237

(quotation marks omitted). We also know that the district court explicitly

examined Garcia-Ramirez’s personal history and characteristics, 18 U.S.C. §

3553(a)(2)(A), the nature and circumstances of the offense, § 3553(a)(1), and the

need to adequately deter Garcia-Ramirez, § 3553(a)(2)(B). Finally, the district

court acknowledged that it found that the 51-month sentence of imprisonment was

reasonable after considering the § 3553(a) factors. See Ellisor, 522 F.3d at 1278.




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As a result, we conclude that Garcia-Ramirez’s sentence was procedurally

reasonable.

                                          II.

      We next consider Garcia-Ramirez’s arguments regarding the substantive

reasonableness of his sentence. We review the substantive reasonableness of a

sentence imposed by the district court for abuse of discretion. United States v.

Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). “The party challenging the sentence

bears the burden to show it is unreasonable in light of the record and the § 3553(a)

factors.” United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010) (per curiam).

We vacate the sentence if, but 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

(quotation marks omitted). We may not set aside a sentence merely because we

decide that another one would have been more appropriate. Irey, 612 F.3d at 1191.

                                          A.

      First, Garcia-Ramirez argues that § 2L1.2’s 16-level increase has a tendency

to over-punish defendants by inflating their guideline ranges unnecessarily. He

emphasizes that the Sentencing Commission has provided no empirical evidentiary

support to justify a 16-level increase for defendants who were previously deported


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after committing a crime of violence. As a result, Garcia-Ramirez argues that the

district court’s decision to apply the guideline range here led to a substantively

unreasonable sentence.

      A sentencing court is free to depart from a guideline sentence on the basis of

the § 3553(a) factors when the applicable guideline is not grounded in empirical

data. See Kimbrough v. United States, 552 U.S. 85, 108–10, 128 S.Ct. 558, 574–

75 (2007) (approving of variances from the crack cocaine guidelines because the

Sentencing Commission did not take account of empirical data). The absence of

empirical data alone, however, does not compel the invalidation of a guideline;

rather, it is just one factor that may be considered in support of a variance. United

States v. Snipes, 611 F.3d 855, 870 (11th Cir. 2010).

      Here, the district court did not abuse its discretion by applying a 16-level

increase and imposing a sentence within the guideline range. Even if Garcia-

Ramirez is correct that § 2L1.2 lacks an empirical justification, the court was not

compelled to vary from the guidelines range on that ground alone. Id. Instead, the

court looked at a number of § 3553(a) factors—including Garcia-Ramirez’s

arguments against imposition of the 16-level increase—and in its discretion

concluded that there should not be a downward variance. See id.; see also

Kimbrough, 552 U.S. at 109–10, 128 S. Ct. at 574–75. The court noted that the

increase was justified in this case because Garcia-Ramirez’s felony conviction was


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a “serious” crime of violence. It also found that Garcia-Ramirez had a lengthy

criminal history and general disrespect for the immigration laws. As a result, the

court did not abuse its discretion by refusing to grant a downward variance based

on the lack of empirical justification alone. See Irey, 612 F.3d at 1191 (“We may

not—it bears repeating—set aside a sentence merely because we would have

decided that another one is more appropriate.”).

                                           B.

      Finally, Garcia-Ramirez argues that his 51-month sentence of imprisonment

is substantively unreasonable in light of the § 3553(a) factors. He contends that the

district court overemphasized his criminal history. He also argues that a lesser

sentence would have been sufficient to achieve the purposes of sentencing,

especially given his obligations to his family, the reasons for his re-entry, and the

additional consequences he is subject to as a result of his illegal status.

      Based on the record before us, we conclude that it was within the district

court’s discretion to impose a 51-month sentence of imprisonment. After

considering Garcia-Ramirez’s criminal history, his patterns of unlawful reentry,

and his alcohol abuse, the district court found that a sentence of imprisonment

within the guideline range was necessary here to promote respect for the law,

provide just punishment, and deter him from further criminal activity. 18 U.S.C.

§ 3553(a)(2); see also United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2008)


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(per curiam) (“[W]e recognize that there is a range of reasonable sentences from

which the district court may choose, and when the district court imposes a sentence

within the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.”).

      Also, even though it is true that the district court emphasized Garcia-

Ramirez’s criminal history, the record does not show that the court did so “single-

mindedly” to the detriment of the other § 3553(a) factors. See United States v.

Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006) (concluding that sentence was

unreasonable because the district court focused on restitution to the detriment of all

other sentencing factors). The court stated that it understood that Garcia-Ramirez

had made efforts to control his drinking, and acknowledged that it had considered

the arguments presented in his Sentencing Memorandum. Even if the court did not

weigh these circumstances and characteristics as heavily as Garcia-Ramirez’s

criminal history, the weight to be given a particular factor is within the court’s

discretion. See Shaw, 560 F.3d at 1237. Therefore, the court did not abuse its

discretion in balancing the § 3553(a) factors.

                                          III.

      Because we conclude that Garcia-Ramirez’s sentence was both procedurally

and substantively reasonable, we affirm.

      AFFIRMED.


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