                                                                      [DO NOT PUBLISH]


                   IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                             FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                               ________________________ ELEVENTH CIRCUIT
                                                                         NOV 25, 2008
                                     No. 07-14851                      THOMAS K. KAHN
                               ________________________                    CLERK


                       D.C. Docket No. 02-00345-CR-4-UWC-HGD

UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellant,

                                           versus

ARTURO ZAVALA,

                                                                       Defendant-Appellee.

                               ________________________

                       Appeal from the United States District Court
                          for the Northern District of Alabama
                             _________________________

                                   (November 25, 2008)

Before BARKETT and WILSON, Circuit Judges, and POGUE,* Judge.

PER CURIAM:

           Arturo Zavala pled guilty to conspiring to distribute and to possess with the


       *
        Honorable Donald C. Pogue, United States Court of International Trade, sitting by
designation.
intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1)

and (b)(1)(A). The government appeals Zavala’s 178-month sentence, imposed

after a remand by a panel of this Court for resentencing consistent with United

States v. Booker, 542 U.S. 220, 125 S. Ct. 738 (2005).

      The government argues that Zavala’s sentence is both procedurally and

substantively unreasonable because the district court failed to properly consider the

§ 3553(a) sentencing factors, instead focusing on the perceived sentence disparity

between similarly-situated codefendants. The government also argues that Zavala

should not have received a sentence comparable to his codefendants, who received

the benefit of § 5K1.1 motions based on their substantial assistance.

      We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005)

(citations omitted). A sentence may be procedurally unreasonable if the district

court incorrectly calculates the Guidelines range, treats the Guidelines as

mandatory, fails to properly consider the § 3553(a) sentencing factors, selects a

sentence based on clearly erroneous facts, or fails to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.

Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 597 (2007). Substantive

reasonableness requires that the totality of the circumstances be considered and



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that the statutory factors of § 3553(a) support the sentence in question. Id.

       “ Reasonableness” review requires that we review the sentence under an

abuse-of-discretion standard. Id. at 594 (stating that the Supreme Court’s

“explanation of ‘reasonableness’ review in the Booker opinion made it pellucidly

clear that the familiar abuse-of-discretion standard of review now applies to

appellate review of sentencing decisions”). If the sentence is outside the

Guidelines range, we may consider 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. “The fact that the appellate court might reasonably have

concluded that a different sentence was appropriate is insufficient to justify

reversal of the district court.” Id.

       In this case, the underlying facts of the case are not disputed. It is also

undisputed that the Guidelines range was properly calculated at the time of

Zavala’s initial sentencing, and the Guidelines were not treated as mandatory. The

real question before us is whether the § 3553(a) sentencing factors were

appropriately considered by the district court.

       The factor in § 3553(a) bearing on disparities in sentencing provides: “The

court, in determining the particular sentence to be imposed, shall consider . . . the

need to avoid unwarranted sentence disparities among defendants with similar



                                            3
records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

Additional factors in § 3553(a) include: (1) the nature and circumstances of the

offense; (2) the history and characteristics of the defendant; (3) the need for the

sentence imposed to reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment; (4) the need to protect the public; and (5)

the Guidelines range. 18 U.S.C. § 3553(a).

      In considering these factors, the court is not required to state on the record

that it has explicitly considered each of them or explain in detail which played a

particular role in sentencing. “[N]othing in Booker or elsewhere requires the

district court to state on the record that it has explicitly considered each of the §

3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott,

426 F.3d 1324, 1329; United States v. McBride, 511 F.3d 1293, 1297 (11th Cir.

2007) (“[A] district court need not account for every § 3553(a) factor, nor must it

discuss each factor and the role that it played in sentencing.”). Instead, indications

in the record that the district court considered facts and circumstances falling

within § 3553(a)’s factors will suffice. See Scott, 426 F.3d at 1329-30.

      Furthermore, as emphasized in Gall, the district court is best situated to

weigh factual circumstances. See Gall,128 S. Ct. at 600 (holding that a district

court did not commit reversible error simply because it “attached great weight” to



                                            4
one factor). District courts are “in a superior position to find facts and judge their

import under § 3553(a) in the individual case. The judge sees and hears the

evidence, makes credibility determinations, has full knowledge of the facts and

gains insights not conveyed by the record.” Id. at 597. Indeed, “[t]he weight to be

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

of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)

(quotation and citation omitted).

      Moreover, this Court has noted that it will reverse a sentence as

substantively unreasonable only when “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. Williams, 456 F.3d

1353, 1363 (11th Cir. 2006) (internal quotations omitted), abrogated on other

grounds by Kimbrough v. United States, 128 S. Ct. 558 (2007).

      Under these standards, we cannot say that the sentence imposed here was

unreasonable. Zavala and his four brothers became involved in the sale of

methamphetamine. Zavala’s brother, Javier, was the head of the organization, and

pursuant to the government’s § 5K1.1 motion on his behalf, received a sentence of

188 months’ imprisonment because he was able to provide assistance to the



                                           5
government. In considering Zavala’s sentence, the district court stated its belief

that “the imposition of a greater sentence than 178, 180 months, would cause the

public to question the justice of a system that imposes a greater sentence on a

follower than a leader.”

      The record here indicates that the trial judge took into account the § 3553(a)

factors and weighed them to impose the punishment required by statute: a sentence

“sufficient, but not greater than necessary” to comply with the purposes of

sentencing. 18 U.S.C. § 3553(a). The court noted that Arturo Zavala had not been

in a position to provide the government with the kind of assistance provided by

Javier and considered the nature of Arturo’s participation in the drug scheme. The

court noted that according to Javier’s plea agreement, when Arturo first became

involved in the endeavor it involved only “small and relatively unorganized [sales

of ] crystal methamphetamine.” It was only after Javier took over as leader that it

became a large and coherent organization. The court concluded that based on the

evidence, Arturo had a lesser role in the organization, whereas Javier had “brought

into the region the majority of the methamphetamine sold there, . . . and [his] role

in the organization placed him in a position to know significant details of

individuals, groups of individuals, storage location, routes, prices, and overall

distribution operations.” Yet, Javier received a sentence of only 188 months, and



                                           6
the other family members who also had 15 kilos of methamphetamine attributed to

each of them received sentences of 168 months.

      It is not erroneous for the district court to have considered the “unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct” when the statute specifically mandates such

consideration. The government argues that these defendants are not because

Javier cooperated with the government and Arturo did not. Such an argument

might have some merit if both defendants had equal information to provide to the

government and one simply refused to produce it. That is not the case here as the

district court found that Arturo had no information to trade for a lesser sentence.

Moreover, this argument ignores the court’s consideration of the relative

culpability of the brothers and the role each played in the conspiracy. With

reference to the other brothers, the court also considered that both Javier and

Miguel were fugitives from justice for quite some time after the indictment was

handed down, while Arturo was not.

      We are satisfied that the district court considered all of the statutory

sentencing factors as it noted:

      THE COURT: Well, I’m specifically finding that this sentence, the
      178- months’ sentence is sufficient, but not greater necessary to
      comply with the statutory purposes of sentencing set forth in
      subparagraph 2 of the section. I’ve considered the nature and

                                           7
      circumstances of the crime, the history and characteristics of this
      defendant; and I consider that this sentence does reflect the
      seriousness of the crime, it’s right at 15 years. It promotes respect for
      the law; I believe that any higher sentence would promote disrespect
      for the law. I believe it provides just punishment for the offense, as
      well as affording adequate deterrence to criminal conduct.

We cannot say that the district court abused its discretion in finding that 15 years

was a reasonable sentence for Arturo Zavala under the facts of this case.

AFFIRMED.




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