                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-13105                ELEVENTH CIRCUIT
                                                           FEBRUARY 23, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                 D. C. Docket No. 08-00117-CR-T-26TGW

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

HECTOR MANUEL ROSALES-DIAZ,

                                                          Defendant-Appellant.


                        ________________________

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

                             (February 23, 2010)

Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

     Hector Manuel Rosales-Diaz (“Rosales-Diaz”) appeals his 120-month
sentence for illegal reentry into the United States following deportation for an

aggravated felony. Rosales-Diaz contends that his sentence is both procedurally

and substantively unreasonable. After review of the record and the parties’ briefs,

we discern no error and AFFIRM.

                                 I. BACKGROUND

      Rosales-Diaz, a native and citizen of Mexico, was brought to the United

States by his parents in 1982 and became a permanent resident in 1998. Between

1999 and 2006, he was convicted of several misdemeanor and felony offenses,

including grand theft; obstructing an officer without violence; possession of

cocaine, marijuana, and methamphetamine; discharging a firearm from a vehicle;

battery; burglary; and burglary of an occupied dwelling. He was removed to

Mexico on 9 December 2006 but eventually reentered the United States. In

January 2008, Rosales-Diaz was located by immigration officials while in custody

following his arrest for aggravated assault, battery, felonious possession of

firearms, and possession of marijuana. Rosales-Diaz pled guilty in March 2009 to

one count of illegal reentry after deportation for an aggravated felony, in violation

of 8 U.S.C. § 1326(a) and (b)(2). See R1-1; R3.

      The probation officer who prepared the presentence investigation report

(“PSI”) assigned Rosales-Diaz a base offense level of eight and applied a sixteen-



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level enhancement because he had been deported following a crime of violence.

U.S.S.G. §§ 2L1.2(a), 2L1.2(b)(1)(A)(ii) (Nov. 1, 2008). Rosales-Diaz received a

three-level reduction for acceptance of responsibility, resulting in a total adjusted

base offense level of twenty-one. See id. § 3E1.1. Based on a total of twenty-six

criminal history points, Rosales-Diaz was placed in criminal history category VI,

which yielded an advisory guidelines range of 77-96 months of imprisonment. The

probation officer also noted that Rosales-Diaz faced a statutory maximum sentence

of twenty years of imprisonment. See 8 U.S.C. § 1326(b)(2).

      At sentencing, the district court adopted the PSI’s guidelines calculations

and sentenced Rosales-Diaz to a 120-month term of imprisonment, explaining,

     . . . . [H]e’s 28 years old. Since becoming an adult at age 18, he’s
     committed crimes which net him a criminal history [score] of 26
     points, which is double the number that you need to qualify for the
     highest criminal history category, that of six.
              As I mentioned earlier, he’s just a one-man crime wave. And I
     mentioned earlier his crimes run the gamut of fleeing the scene of
     accidents, fleeing from law enforcement, assaulting people,
     burglarizing people – burglarizing a person’s vehicle, burglarizing a
     person’s home, while leaving – while fleeing from law enforcement.
              He has no regard for the safety and welfare of people who live in
     this community. He obviously has no regard or respect for the law
     because he’s always running from law enforcement, which poses a
     great risk.
              I’ve looked – I’ve examined the advisory guideline range, as I
     am told I must. I have examined the statutory factors of Title 18 of the
     United States Code, Section 3553(a)1 through 7. Particularly, I have
     focused on the nature and circumstances of the offense, as well as the
     history and characteristics of this Defendant.

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            Although he doesn’t qualify as a career offender as we generally
     think of it within the statutory context, he is a career criminal. That’s
     what he is. He – there is a significant need to protect the public from
     further crimes oft this Defendant. After he’s deported, he comes back
     here and I’ve had people like him many, many times and they come
     back, and they know they shouldn’t be back here, but the record
     reflects they came back to really support their family. That’s not the
     case with him, he came back to commit more crimes, as evidenced by
     the conviction for which he is receiving a sentence of 42 months in the
     State system.
            So, there is a significant need to protect the public from further
     crimes of this Defendant and to afford adequate deterrence to criminal
     conduct. Additionally, I need to fashion a sentence which will really
     reflect the seriousness of this particular offense, to promote respect for
     the law, and to provide a just punishment for him in light of all the
     facts and circumstances.
            Having said all that, in my considered opinion, I believe that a
     variance upward is more in order, and I believe that a sentence of 10
     years is more than reasonable in this case, and I intend to give him 10
     years.

R4 at 7-8, 14-17. The court emphasized that the sentence imposed was “a

variance, after taking into account both the advisory guidelines as well as the

statutory factors,” and “not an upward departure under the advisory guidelines.”

Id. at 18. This appeal followed.

                                   II. DISCUSSION

      On appeal, Rosales-Diaz argues that his sentence is procedurally

unreasonable because the district court failed to adequately explain its reasons for

imposing an upward variance based on the § 3553(a) factors rather than an upward

departure under the guidelines. He asserts that the district court’s imposition of an

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above-guidelines sentence was based entirely on his criminal history, which the

district court already had considered in calculating his guidelines range, and

therefore, should have been pursuant to U.S.S.G. § 4A1.3, which permits upward

departures in cases where the court believes that “the defendant’s criminal history

category substantially under-represents the seriousness of the [his] criminal

history.” U.S.S.G. § 4A1.3(a)(1). Rosales-Diaz further contends that his sentence

is substantively unreasonable because it is greater than necessary to achieve the

statutory purposes of sentencing.

      We review a sentence, whether inside or outside the guidelines range, for

reasonableness, using an abuse-of-discretion standard. Gall v. United States, 552

U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We first look to see whether the district

court committed a “significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence – including an

explanation for any deviation from the Guidelines range.” Id.

      If we are satisfied that there has been no procedural error, we then consider

whether the sentence imposed is substantively reasonable. Id. When conducting

this review, we must consider “the totality of the circumstances, including the



                                           5
extent of any variance from the Guidelines range.” Id. Where the sentence is

outside the applicable guidelines range, we “may consider the extent of the

deviation, but must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. Those factors

include, inter alia: (1) the nature and circumstances of the offense and the history

and characteristics of the defendant; (2) the need for the sentence imposed to (a)

reflect the seriousness of the offense, promote respect for the law, and provide just

punishment for the offense; (b) afford adequate deterrence to criminal conduct; and

(c) protect the public from further crimes of the defendant; (3) the kinds of

sentences available; and (4) the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct. See 18 U.S.C. § 3553(a).

      In this case, the district court correctly calculated Rosales-Diaz’s guidelines

range, addressed the § 3553(a) factors, and gave a thorough explanation, on the

record, for its decision to deviate from the applicable guidelines range. Although

Rosales-Diaz argues that the district court committed reversible error by failing to

explain why it chose a variance under § 3553(a) rather than a departure under

U.S.S.G. § 4A1.3, he has cited no authority in support of such a proposition. To

satisfy procedural reasonableness, the district court need only “adequately explain



                                           6
the chosen sentence – including an explanation for any deviation from the

Guidelines range.” Gall, 552 U.S. at 51, 128 S. Ct. at 597. The court did so here.

      Rosales-Diaz’s contention that a variance was improper because it was based

in part on his criminal history, which had already been accounted for in the

calculation of his guidelines range, is likewise without merit. We have held that

the district court may, in determining a reasonable sentence, consider facts that

have already been taken into account in calculating the defendant’s guideline

range. See United States v. Williams, 526 F.3d 1312, 1324 (11th Cir. 2008) (per

curiam); see also 18 U.S.C. § 3661 (“No limitation shall be placed on the

information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.”). The district court

committed no procedural error, significant or otherwise.

      Rosales-Diaz has also failed to carry his burden of proving that his sentence

was substantively unreasonable. Given the nature and circumstances of the offense

as well as Rosales-Diaz’s extensive criminal history, we cannot conclude that his

120-month sentence, which is well below the applicable statutory maximum of

twenty years of imprisonment, is greater than necessary to effectuate the statutory

purposes of sentencing, or that “the district court committed a clear error of



                                           7
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.” United

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks and citation

omitted); see United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per

curiam) (upholding reasonableness of sentence that was “well below the maximum

ten-year sentence available under 8 U.S.C. § 1326(b)(1)”). Finding no abuse of

discretion, Rosales-Diaz’s sentence is

      AFFIRMED.




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