                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                               FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                                     JULY 28, 2010
                                       No. 10-10298                   JOHN LEY
                                   Non-Argument Calendar                CLERK
                                 ________________________

                          D.C. Docket No. 1:09-cr-00143-JEC-LTW-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff - Appellee.


                                            versus


JOSE MOLINA-MURILLO,

llllllllllllllllllll                                             lDefendant - Appellant.

                                ________________________

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

                                        (July 28, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         Jose Molina-Murillo appeals his 46-month sentence, which was at the low
end of his guideline range, for illegally re-entering the United States after having

been convicted of an aggravated felony and removed. Molina-Murillo argues that

his sentence is substantively unreasonable. For the reasons set forth below, we

affirm.

                                          I.

      Molina-Murillo pled guilty to illegally re-entering the United States after

having been removed, in violation of 8 U.S.C. § 1326(a) and (b)(2). According to

the presentence investigation report (“PSI”), Molina-Murillo, a native and citizen

of Honduras, was arrested on January 30, 2009, on a probation violation.

Molina-Murillo had previously been deported on three separate occasions—May

27, 1989, June 7, 1991, and May 20, 2003.

      The PSI set Molina-Murillo’s total offense level at 21. The criminal-history

section of the PSI showed that Molina-Murillo received criminal-history points for

a 1997 conviction for possession of cocaine base for sale and 2004 convictions for

driving without a license and driving under the influence of alcohol. In 2001,

Molina-Murillo was convicted of driving without a license, but he received no

criminal-history points for this offense. In addition to his prior convictions,

Molina-Murillo had been arrested in November 1989, for taking a vehicle without

the owner’s consent and receiving stolen property; in July 1994, for first degree

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robbery; in July 1998, for possession of cocaine base for sale; and in August 2000,

for driving under the influence, petty theft, and driving on a suspended license.

Based on his prior convictions, Molina-Murillo was placed in criminal history

category III, which combined with his total offense level of 21 to yield a guideline

imprisonment range of 46 to 57 months.

         At sentencing, Molina-Murillo asked the court to impose a sentence below

the applicable guideline range, noting that, other than his prior drug conviction,

the only offenses for which he received criminal-history points were convictions

for driving without a license and driving under the influence. He noted that, since

he had been incarcerated, he had fallen and injured his teeth, which had not been

repaired and caused him pain. He also noted that he and his wife had HIV, and

that he had adult children in Honduras who could support him once he was

deported. Molina-Murillo personally addressed the court and stated that he came

to the United States to help his children, and that he would stay in Honduras after

being deported because he did not want to go through the deportation process

again.

         The government responded that a sentence within the applicable guideline

range was appropriate, because Molina-Murillo had a history of returning to the

United States and committing additional offenses shortly after being deported. It

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noted that Molina-Murillo was over 40 years’ old but was still committing crimes

and associating with the wrong people. It contended that Molina-Murillo’s actions

showed a lack of respect for the law. The government also argued that

Molina-Murillo’s driving under the influence offense endangered the public, and

that a sentence within the guideline range was necessary to protect the public from

future crimes.

      The court noted that, because of Molina-Murillo’s HIV, dental problems,

and family ties in the United States, it might have chosen to impose a sentence

below the guideline range if Molina-Murillo had not been deported three times

previously. It found that “the only thing that will get Mr. Molina’s attention is a

sentence of incarceration substantial enough, because we have tried deportation

and that didn’t work. We tried short sentences. That didn’t work.” The court also

noted that “the DUI[]s and the driving without a license in their own way arguably

are more dangerous to the citizens of this country maybe than the crack, because

he continues to do that and that makes him a danger to the public.” Based on its

findings, the court imposed a sentence of 46 months’ imprisonment.

                                         II.

      In considering the substantive reasonableness of a sentence, we consider the

totality of the circumstances and apply an abuse-of-discretion standard, under

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which we reverse only if we find “that the district court has made a clear error of

judgment.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)

(quotation omitted). The party challenging the sentence “bears the burden of

establishing that the sentence is unreasonable in the light of both th[e] record and

the factors in [18 U.S.C. §] 3553(a).” United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). We ordinarily expect that a sentence within the applicable

guideline range is reasonable. Id.

      “[T]he district [court] should . . . consider all of the § 3553(a) factors to

determine whether they support the sentence requested by a party.” Gall v. United

States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). The

factors in § 3553(a) that the court must consider are:

         (1) the nature and circumstances of the offense and the history
         and characteristics of the defendant; (2) the need to reflect the
         seriousness of the offense, to promote respect for the law, and to
         provide just punishment for the offense; (3) the need for
         deterrence; (4) the need to protect the public; (5) the need to
         provide the defendant with needed educational or vocational
         training or medical care; (6) the kinds of sentences available; (7)
         the Sentencing Guidelines range; (8) pertinent policy statements
         of the Sentencing Commission; (9) the need to avoid
         unwa[rra]nted sentencing disparities; and (10) the need to provide
         restitution to victims.

Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).

      “[W]e may find that a district court has abused its considerable discretion if

                                           5
it has weighed the factors in a manner that demonstrably yields an unreasonable

sentence.” Pugh, 515 F.3d at 1191. Normally, however, the decision of how

much weight to accord particular factors in devising a sentence is within the

discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007).

                                         III.

      Molina-Murillo’s 46-month sentence, which was at the lowest point in his

guideline range, is substantively reasonable in light of his prior offenses and

history of illegally re-entering the United States. As the district court pointed out

at sentencing, previous short sentences and removals had not deterred

Molina-Murillo from continuing to violate immigration and criminal laws. The

fact that Molina-Murillo had been removed from the country on three occasions

indicates his unwillingness to comply with the laws of this country, as he has

apparently entered the country illegally on at least four occasions. Furthermore,

Molina-Murillo has been convicted of three non-immigration related offenses and

arrested four additional times. Thus, based on Molina-Murillo’s history, the

district court did not abuse its discretion in determining that a sentence within the

guideline range was necessary to promote respect for the law and provide

deterrence. See 18 U.S.C. § 3553(a)(1), (2)(A)-(B). Although Molina-Murillo

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argues that his sentence will not provide general deterrence because his case has

not been publicized, the district court’s remarks indicate that it was primarily

concerned with deterring Molina-Murillo from re-entering the United States

illegally and from committing additional crimes. Finally, the need to protect the

public from future crimes committed by Molina-Murillo weighs in favor of a

within-range sentence, as Molina-Murillo’s prior arrests and convictions for

driving without a license and driving under the influence show a disregard for

public safety. See 18 U.S.C. § 3553(a)(2)(C). Accordingly, we affirm

Molina-Murillo’s 46-month sentence.

      AFFIRMED.




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