           Case: 17-13320   Date Filed: 05/07/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13320
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:17-cr-20181-JEM-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

RICARDO LEE DURAN,

                                                         Defendant-Appellant.

                      ________________________

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

                              (May 7, 2018)

Before WILLIAM PRYOR, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Ricardo Duran appeals his sentence of 40 months of imprisonment, imposed

below the advisory guideline range, after pleading guilty to one count of illegal

reentry of a previously deported alien, in violation of 8 U.S.C. § 1326(a) and

(b)(2).   Duran presents two issues on appeal: (1) whether his sentence was

substantively unreasonable when the reason he returned to the United States was to

care for his children while his wife underwent surgery; and (2) whether the district

court violated the Sixth Amendment by increasing his statutory maximum sentence

based on prior convictions that were neither charged in the indictment nor proved

beyond a reasonable doubt. After careful review, we affirm.

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). A district court

abuses its discretion under this standard only if 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. Rosales-Bruno, 789 F.3d 1249,

1256 (11th Cir. 2015) (quotation marks omitted).

      The district court must 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


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defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). The court must

also consider the nature and circumstances of the offense and the history and

characteristics of the defendant. Id. § 3553(a)(1).

      The district court must consider all of the § 3553(a) factors, but it may, in its

discretion, give greater weight to some factors over others. Rosales-Bruno, 789

F.3d at 1254. Nevertheless, a district court’s unjustified reliance on any one

§ 3553(a) factor may be indicative of a substantively unreasonable sentence.

United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006).              The party

challenging the sentence bears the burden of demonstrating that the sentence “is

unreasonable in light of the entire record, the § 3553(a) factors, and the substantial

deference afforded sentencing courts.” Rosales-Bruno, 789 F.3d at 1256.

      When evaluating the reasonableness of a sentence, we ordinarily expect that

a sentence imposed within the guideline range is reasonable. United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008). If a sentence is imposed well below the

statutory maximum, that too is an indication that the sentence is reasonable.

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

      Here, the district court did not abuse its discretion, and Duran’s sentence is

substantively reasonable. To begin with, Duran’s 40-month sentence is below the

advisory guideline range of 46 to 57 months of imprisonment—based on an

offense level of 19 and a criminal-history category of IV—and well below the


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statutory maximum of 20 years under 8 U.S.C. § 1326(b)(2). Both of these facts

suggest that his sentence is reasonable. See Gonzalez, 550 F.3d at 1324; Hunt, 526

F.3d at 746.

      Duran argues that a greater downward variance was warranted because the

reason he violated § 1326 was “so very compelling.” He states he tried to reenter

the United States to take care of his two daughters while his wife underwent

surgery to remove a tumor. He contends that, because of his own traumatic

childhood, he was determined to ensure his children would not be placed in foster

care and suffer the same abuse he did as a child.

      However, the district court did not abuse its discretion in refusing to grant

Duran the significant downward variance requested. The court considered his

arguments on this issue and found the circumstances of his return to be mitigating.

But the court reasonably concluded that a sentence of 40 months was appropriate

in light of the record and the § 3553(a) sentencing factors, including the history

and characteristics of the defendant, the need to promote respect for the law, and

the need to provide adequate deterrence. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)–

(B). While Duran may have felt compelled to return to the United States, and

while it is not hard to sympathize with his desire to care for and be with his wife

and children, the fact remains he was barred from reentry, having twice been

deported following convictions for drug trafficking and money laundering in 2006.


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See 8 U.S.C. § 1326. And his reentry in this case occurred less than a year from

the date of his second deportation, after he had served a prison sentence of 37

months for a prior reentry offense. Based on these facts, we cannot say that the

district court was unreasonable in deciding not to give Duran’s reason for

reentering the United States more weight.

       In short, the district court did not ignore a relevant factor, emphasize an

improper factor, or unreasonably weigh the relevant factors, and, therefore, did not

abuse its discretion. See Rosales-Bruno, 789 F.3d at 1256.                      Considering the

advisory guideline range, the statutory maximum, and Duran’s personal

characteristics and criminal history, including a prior reentry offense for which he

served time in prison, Duran has not established that his sentence of 40 months of

imprisonment is “unreasonable in light of the entire record, the § 3553(a) factors,

and the substantial deference afforded sentencing courts.” See id.

       As for Duran’s contention that the district court violated his rights under the

Sixth Amendment, that argument is foreclosed by binding precedent.1                              In

Almendarez-Torres, the Supreme Court held that prior convictions need not be

alleged in the indictment or proved to a jury beyond a reasonable doubt.

Almendarez-Torres v. United States, 523 U.S. 224, 239–47 (1998). Though the

       1
         We ordinarily review the constitutionality of a statute de novo because it is a question of
law. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). However, we review this
issue for plain error because Duran raises it for the first time on appeal. Id. In any case, Duran
cannot establish any error, plain or otherwise.
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Court has questioned the validity of that rule, see, e.g., Apprendi v. New Jersey,

530 U.S. 487–90 (2000), it has not yet reconsidered Almendarez-Torres’s holding.

Unless and until the Court does so, we remain bound by Almendarez-Torres.

United States v. Deshazior, 882 F.3d 1352, 1358 (11th Cir. 2018); United States v.

Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004).

      For these reasons, Duran’s sentence is affirmed.

      AFFIRMED.




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