              Case: 12-15747    Date Filed: 06/06/2013   Page: 1 of 6


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-15747
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 2:11-cr-00091-JES-DNF-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

SANTOS DAMIAN ARGUETA-ZALDIVAR,

                                                              Defendant-Appellant.

                          ________________________

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

                                  (June 6, 2013)

Before DUBINA, Chief Judge, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      Appellant Santos Damian Argueta-Zaldivar appeals his sentence of 84

months’ imprisonment, imposed, by the district court, after he pleaded guilty to
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illegally re-entering the United States after having been deported following a

conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).

On appeal, Argueta-Zaldivar argues that his sentence is both procedurally and

substantively unreasonable. The government responds in relevant part that,

because Argueta-Zaldivar did not object to the procedural reasonableness of his

sentence before the district court, we should review for plain error.

                                          I.

      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,

169 L. Ed. 2d 445 (2007). The party challenging the sentence has the burden of

establishing that the sentence is unreasonable. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). In reviewing the reasonableness of a sentence, we first

consider whether the district court committed a procedural error, such as failing to

calculate or improperly calculating the guideline range. Gall, 552 U.S. at 51, 128

S. Ct. at 597. We also ensure that the district court treated the Sentencing

Guidelines as advisory, considered the 18 U.S.C. § 3553(a) factors, did not select a

sentence based on clearly erroneous facts, and adequately explained the chosen

sentence. Id. While a sentencing court is not required to state on the record that it

has explicitly considered each of the § 3553(a) factors or to discuss each factor, it

should set forth enough to satisfy the appellate court that it has considered the


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parties’ arguments and has a reasoned basis for exercising its legal decision-

making authority. See United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir.

2007) (citation omitted). The court’s acknowledgment that it has considered the §

3553(a) factors together with the parties’ arguments is sufficient. Talley, 431 F.3d

at 786. The appropriateness of brevity or length of a district court’s reasons for

accepting or rejecting an argument depends upon the circumstances and leaves

much to the court’s own professional judgment. Rita v. United States, 551 U.S.

338, 356, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007). Where the context and

the record make clear that the court listened to each argument and found the

circumstances insufficient to warrant a sentence lower than it imposed, extensive

explanation is not required. See id. at 358-59, 127 S. Ct. at 2469.

                                          II.

      If we determine that a sentence is procedurally sound, we examine whether

the sentence is substantively reasonable in light of the totality of the circumstances

and the § 3553(a) factors. Gall, 552 U.S. at 51, 128 S. Ct. at 597. The district

court is required to impose a sentence sufficient, but not greater than necessary, to

comply with the purposes listed in § 3553(a)(2), including the need to reflect the

seriousness of the offense, promote respect for the law, provide just punishment for

the offense, deter criminal conduct, and protect the public from the defendant’s

future criminal conduct. 18 U.S.C. § 3553(a)(2). We ordinarily expect a sentence


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within the guideline range to be reasonable. United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008). A sentence imposed well below the statutory

maximum is another indicator of a reasonable sentence. See id. The “weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.

2008) (internal quotation marks omitted). We will reverse only if 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.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation

marks omitted). We review on appeal for plain error assignments of error not

raised in the district court. See United States v. Rodriguez, 627 F.3d 1372, 1380

(11th Cir. 2010).

                                          III.

      Here, we conclude from the record that the district court committed no

procedural error, plain or otherwise. The court properly calculated Argueta-

Zaldivar’s guideline range, based the sentence on undisputed facts set forth in his

presentence investigation report, and provided a minimally adequate explanation

for the chosen sentence. See Gall, 552 U.S. at 51, 128 S. Ct. at 597. Although the

court did not explicitly state that it treated the Guidelines as advisory, there is no


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indication that it did otherwise. See id. The court’s statement that it considered the

§ 3553(a) factors—which include the Guidelines—was sufficient to demonstrate

that it in fact did so. See 18 U.S.C. § 3553(a)(4)(A); Talley, 431 F.3d at 786. The

court also stated that it “fe[lt] sympathy for” Argueta-Zaldivar’s handicap (one of

his arms was amputated below the elbow)—which indicates that it considered his

arguments in mitigation. See Agbai, 497 F.3d at 1230; Talley, 431 F.3d at 786.

While not required to address each of the § 3553(a) factors individually, the court

also specifically discussed Argueta-Zaldivar’s criminal history and the nature of

his prior convictions. See Id. Extensive explanation was not required here, where

the context and the record show that the court listened to each argument and

concluded that the circumstances supported the sentence imposed. See Rita, 551

U.S. at 358-59, 127 S. Ct. at 2469.

                                         IV.

      We also conclude from the record that Argueta-Zaldivar has not met his

burden of establishing that his sentence is substantively unreasonable. See Irey,

612 F.3d at 1190; Talley, 431 F.3d at 788. Because Argueta-Zaldivar’s 84-month

sentence was within his guideline range of 77 to 96 months, we ordinarily would

expect it to be reasonable. See Gonzalez, 550 F.3d at 1324. His sentence is also

well below the statutory maximum of 20 years’ imprisonment, which is yet another

indicator of its reasonableness. See id.; see also 8 U.S.C. § 1326(b)(2). He had an


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extensive criminal history and had repeatedly returned to the United States after

having been deported. He has cited no authority for his suggestion that his

physical handicap, his seizures, or his substance-abuse problems render his within-

guideline sentence unreasonable. Argueta-Zaldivar’s sentence met the goals listed

in § 3553(a), as his previous sentences of imprisonment had failed to deter him,

protect the public from his criminal conduct, or promote respect for the law. See

18 U.S.C. § 3553(a)(2).

      For the above-stated reasons, we affirm Argueta-Zaldivar’s sentence.

      AFFIRMED.




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