             Case: 19-13724    Date Filed: 04/24/2020   Page: 1 of 8



                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 19-13724
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 5:19-cr-00027-JDW-PRL-1


UNITED STATES OF AMERICA,

                                                              Plaintiff - Appellee,

                                    versus

JESUS GONZALEZ-VILLANUEVA,

                                                           Defendant - Appellant.

                         ________________________

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

                                (April 24, 2020)

Before ROSENBAUM, BRANCH, and FAY, Circuit Judges.

PER CURIAM:

     Jesus Gonzalez-Villanueva appeals his sentence of 18 months in prison, an

upward variance from the guideline range of 8 to 14 months, for reentering the
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United States illegally. See 8 U.S.C. § 1326(a), (b)(2). He argues that the district

court abused its discretion by failing to afford consideration to relevant factors that

were due significant weight and imposing a substantively unreasonable sentence.

He also contends that his sentence is unconstitutional because his maximum

statutory sentence was increased based on the fact of a prior conviction that was not

admitted by him or proved to a jury beyond a reasonable doubt. After careful review,

we affirm.

                                          I.

      In June 2019, Gonzalez-Villanueva, a native and citizen of Mexico, pled

guilty to illegal reentry into the United States after being removed subsequent to a

conviction for an aggravated felony, namely, aggravated battery with a deadly

weapon, in violation of 8 U.S.C. § 1326(a) and (b)(2).

      Gonzalez-Villanueva was removed from the United States under an

administrative order in August 2011.           His removal followed an April 2011

conviction of aggravated battery with a deadly weapon in Florida. According to the

presentence investigation report (“PSR”), law-enforcement officers responded to a

residence about a domestic battery in progress. When they arrived, the victim

reported that Gonzalez-Villanueva had hit her with a beer bottle, kicked her in the

face, came at her with a knife and a machete, and used his truck to strike a vehicle

she was in. Gonzalez-Villanueva was charged with both aggravated battery with a


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deadly weapon and aggravated assault with a deadly weapon.                He pled nolo

contendere to the battery count, and the assault count was withdrawn.

      After his August 2011 removal, Gonzalez-Villanueva reentered the United

States illegally in September 2011 and was removed again three days later. Then,

in 2019, he came to the attention of immigration authorities after he was issued a

traffic citation in Florida for driving with a suspended or revoked license.

      The PSR calculated a recommended guideline imprisonment range of eight to

fourteen months based on a total offense level of ten and a criminal-history category

of II. The probation officer did not identify any factors that warranted a variance

from the guideline range. The statutory maximum sentence for an illegal reentry

offense is two years of imprisonment, see 8 U.S.C. § 1326(a), unless the defendant’s

“removal was subsequent to a conviction for commission of an aggravated felony,”

in which case the statutory maximum is twenty years, see id. § 1326(b)(2).

      At sentencing, Gonzalez-Villanueva asked for a sentence within the guideline

range. In support of that request, he emphasized that he had reentered the country

to take care of his children and that his prior domestic partner had been abusive.

      The district court sentenced Gonzalez-Villanueva to 18 months in prison, a

minor upward variance from the guideline range. The court found that a more severe

sentence was necessary in light of Gonzalez-Villanueva’s “prior felony for a very

serious charge” and his two prior removals. The court concluded that Gonzalez-


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Villanueva was likely to reoffend and that he had “demonstrated by his conduct that

he has no respect for the laws of the United States or the laws of the State of Florida.”

Gonzalez-Villanueva objected that the sentence was substantively unreasonable, and

this appeal followed.

                                           II.

      We review the substantive reasonableness of a sentence under a deferential

abuse-of-discretion standard. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.

2010) (en banc); United States v. Nagel, 835 F.3d 1371, 1376 (11th Cir. 2016). We

examine whether the sentence is substantively reasonable under the totality of the

circumstances and in light of the sentencing factors listed in 18 U.S.C. § 3553(a).

United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014).

      The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in 18 U.S.C. § 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); see Irey, 612 F.3d

at 1196. The court must also consider the nature and circumstances of the offense

and the history and characteristics of the defendant, among other factors. 18 U.S.C.

§ 3553(a)(1).




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      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. United States v. Rosales-

Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). The court enjoys “substantial,” but

not unfettered, discretion. Id. at 1255. A court abuses its discretion and imposes a

substantively unreasonable sentence 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.” Id. at 1256. The defendant bears the burden of showing that the

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

substantial deference afforded sentencing courts.” Id. In general, that means

convincing us that the sentence “lies outside the range of reasonable sentences

dictated by the facts of the case.” Irey, 612 F.3d at 1190 (quotation marks omitted).

                                          III.

      Gonzalez-Villanueva’s sentence is substantively reasonable. The district

court properly weighed the § 3553(a) factors and arrived at a reasonable sentence.

Gonzalez-Villanueza was removed from the United States in August 2011 after a

conviction for aggravated battery with a deadly weapon. After his removal, he twice

reentered the United States illegally and then was arrested for driving without a valid

license. Based on these facts, the court reasonably concluded that a minor upward

variance from the guideline imprisonment range of 8 to 14 months was necessary to


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promote respect for the law, deter criminal conduct, and protect the public. See 18

U.S.C. § 3553(a)(2).     And Gonzalez-Villanueva’s sentence is well below his

maximum statutory sentence of 20 years, which suggests that it is reasonable. See

United States v. Croteau, 819 F.3d 1293, 1309–10 (11th Cir. 2016).

      The district court did not abuse its discretion by failing to afford consideration

to factors that were due significant weight. Gonzalez-Villanueva argues that the

court failed to consider (a) that neither the probation officer nor the government

identified a factor that warranted a sentence outside the guideline range; (b) that the

sentence would have been within the guideline range for a defendant with a prior

illegal reentry conviction, which he did not have; and (c) his acceptance of

responsibility. But we see no error. The record reflects that the district court

considered the correct guideline range, which reflected his acceptance of

responsibility, as well as the views of the probation officer. The guideline range is

merely advisory, however, and the court is not required to defer to any other entity

in selecting an appropriate sentence based on the facts of the case and the § 3553(a)

factors, whether that sentence is inside or outside of the guideline range. See

Rosales-Bruno, 789 F.3d at 1253–56. For the reasons explained above, the court’s

choice of sentence was reasonable.

      Nor did the district court give undue weight to an improper or irrelevant factor.

Gonzalez-Villaneuva asserts that the court mistakenly believed that he had been


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convicted of both aggravated battery and aggravated assault. It appears the court

simply misspoke once, however. Other comments at sentencing show that the court

understood that Gonzalez-Villanueva had not been convicted of both aggravated

battery and aggravated assault. See, e.g., Doc. 45 at 8 (stating that it “recognize[d]

that he has a prior felony for a very serious charge” (emphasis added)). In any case,

the court had before it the undisputed facts that led to the aggravated battery and

aggravated assault charges. So we see little support in the record for Gonzalez-

Villanueva’s contention that the court based his sentence on a mistaken view of his

criminal history.

      For all of these reasons, Gonzalez-Villanueva has not shown that the district

court abused its discretion or imposed a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case. See Irey, 612 F.3d at 1190.

We therefore affirm his 18-month prison sentence.

                                          IV.

      Finally,      Gonzalez-Villanueva   concedes   that    his   challenge   to   the

constitutionality of his sentence is foreclosed by precedent. In Almendarez–Torres

v. United States, the Supreme Court held that a prior conviction does not have to be

charged in an indictment or proven beyond a reasonable doubt to a jury, even if it

increases the defendant’s maximum statutory sentence. 523 U.S. 224, 226–27




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(1998). Almendarez-Torres remains the law unless and until overruled by the

Supreme Court.

     AFFIRMED.




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