            Case: 16-13629   Date Filed: 01/05/2017   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13629
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:15-cr-00034-HLM-WEJ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

FELICIANO PEREZ-GARDINAS,

                                                          Defendant-Appellant.

                       ________________________

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

                             (January 5, 2017)

Before MARCUS, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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      Feliciano Perez-Gardinas appeals his 30-month sentence imposed after he

pleaded guilty to re-entry following deportation in violation of 8 U.S.C. §§ 1326(a)

and (b)(2). Perez-Gardinas argues that his sentence was substantively

unreasonable based on the factors in 18 U.S.C. § 3553, and that he should have

received a 24-month sentence instead. After careful review, we affirm.

                                          I.

      Perez-Gardinas is a citizen of Guatemala. He first came to the United States

over sixteen years ago when he was a teenager. During his youth, Guatemala was

in a dangerous state of civil war. The war ended in 1996, but it left his family no

opportunities besides subsistence farming. Perez-Gardinas says he then came to

the United States to work as a laborer and send money to his family back in

Guatemala.

      Perez-Gardinas says he has an alcohol problem that led to his arrest in 2007.

He pleaded guilty to aggravated assault at that time after a domestic dispute with

his girlfriend. As a result, he served a 120-day sentence and was then deported to

Guatemala on April 29, 2009.

      Perez-Gardinas tells us when he returned to Guatemala, he was a target for

robbery and violence because others thought he had brought back money from the

United States. He also says his family desperately needed money because they

were living in poverty, and because his wife and children developed tuberculosis


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and could not afford the medication. Perez-Gardinas returned to the United States,

crossing the Texas border illegally in 2013.

       Another alcohol-fueled event led to his arrest in 2014. Perez-Gardinas

committed simple battery after pouring a beer on his girlfriend. When police tried

to arrest him, he attempted to flee. He was caught after a short foot chase, and then

gave the officers and booking agent a false name. Perez-Gardinas was charged

with three counts: (1) simple battery; (2) obstruction of an officer; and (3) giving a

false name to a law enforcement officer. He received a 12-month sentence for

these charges after pleading guilty.

       The 2014 arrest also led to the federal charge in this case for re-entry

following deportation. Perez-Gardinas pleaded guilty. His presentence

investigation report (“PSR”) calculated a total offense level of 21. Based on his

earlier convictions,1 the PSR placed him in Criminal History Category IV. The

resulting guideline range for Perez-Gardinas was 57 to 71 months.

       At sentencing, Perez-Gardinas sought a variance under the § 3553(a) factors,

a reduction in his criminal history category to III, and a reduction in his total

offense level. He argued that given the circumstances—several old misdemeanors;

a war-torn country; a family in need; accepting responsibility; and a 16-point

increase for pouring a beer on someone—a 24-month sentence would be more

       1
         Aside from the convictions detailed here, Perez-Gardinas was also convicted in 2015 of
giving false information to law enforcement.
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appropriate. The government acknowledged many of these circumstances, and

said that a four-level reduction resulting in a 37-month sentence would be

appropriate.

      Based on these arguments, the district court reduced Perez-Gardinas’s

criminal history category to III and reduced his offense level by four points,

resulting in a new guidelines range of 30 to 37 months. After considering the

§ 3553 factors and hearing from Perez-Gardinas, the district court sentenced him to

30-months imprisonment.

                                         II.

      On appeal, Perez-Gardinas argues the district court imposed a substantively

unreasonable sentence because it did not properly consider the § 3553 factors. He

says the district court did not consider the circumstances in Guatemala that led him

to re-enter; the time he served before facing the federal charge; his minor criminal

history; or his family back in Guatemala.

      We review the 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

(2007). We examine whether a sentence was substantively unreasonable by taking

into account the totality of the circumstances. Id. at 51, 128 S. Ct. at 597. Perez-

Gardinas bears the burden of showing his sentence is unreasonable in light of the




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record and the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010).

       After considering the totality of the circumstances, we conclude that Perez-

Gardinas’s sentence was substantively reasonable. The district court considered

the factors in § 3553(a) at sentencing. Perez-Gardinas received a significant

downward variance in his guidelines range, after adjustments to both his criminal

history category and his total offense level. The district court also sentenced

Perez-Gardinas at the very bottom of this reduced range. It was the court’s

consideration of the § 3553(a) factors, including the circumstances that Perez-

Gardinas points out now, that led to this variance. Therefore, the district court did

not abuse its discretion or commit a clear error of judgment in balancing the

§ 3553(a) factors. See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(en banc). As a result, we affirm Perez-Gardinas’s sentence as substantively

reasonable.

      AFFIRMED.




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