                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-12717                 DEC 10, 2010
                                   Non-Argument Calendar             JOHN LEY
                                                                       CLERK
                                 ________________________

                           D.C. Docket No. 2:10-cr-14018-KMM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                           versus

RICHARD NOEL QUEZADA,

lllllllllllllllllllll                                             Defendant-Appellant.

                                ________________________

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

                                     (December 10, 2010)

Before TJOFLAT, HULL and MARTIN, Circuit Judges.

PER CURIAM:

         Appellant Richard Noel Quezada pled guilty to two counts of a five-count

indictment charging him with bringing five aliens into the United States in
violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and the district court sentenced him to

concurrent prison terms of 84 months. He now appeals his sentences, arguing that

his sentence are both procedurally and substantively unreasonable. Appellant

contends that the sentences are procedurally unreasonable because the district

court improperly considered his prior arrests1 and failed to provide a “more

significant justification” for its upward variance from the prescribed Guidelines

sentencing range. Appellant contends that his sentences are substantively

unreasonable because (1) the district court overemphasized his criminal history

without giving due weight to the “nature and circumstances of the offense,”

thereby creating a “substantial disparity” between his sentences and the those

imposed in typical alien-smuggling cases; (2) the district court should not have

considered specific deterrence and incapacitation as sentencing objectives given

that this was appellant’s first offense involving the smuggling of aliens; and (3)

U.S.S.G. § 2L1.1, § 4A1.3, and the Sentencing Commission’s relevant policy

statements. all counseled against an upward variance.

      Our “substantive review of sentences is deferential” and “only look[s] to see

if the district court abused its discretion by committing a clear error in judgment.”

United States v. Irey, 612 F.3d 1160, 1165 (11th Cir. 2010) (en banc). Review for


      1
          Appellant’s prior arrests did not result in the filing of criminal charges against him.

                                                  2
abuse of discretion applies to all sentences, even variances outside the Guidelines

sentencing range. Id. at 1186 (citing Gall v. United States, 552 U.S. 38, 46, 128

S.Ct. 586, 594, 169 L.Ed.2d 445 (2007)). The party who challenges a sentence,

here the defendant, “bears the burden of establishing that the sentence is

unreasonable in light of both the record and the factors in [18 U.S.C. §]

section 3553(a).” United States v. Tate, 586 F.3d 936, 947 (11th Cir. 2009)

(alterations and citation removed).

      A sentence may be procedurally or substantively unreasonable. Gall, 552

U.S. at 51, 128 S.Ct. at 597. A sentence may be procedurally unreasonable if the

district court (1) improperly calculates the guideline range, (2) treats the

Guidelines as mandatory, (3) fails to consider the appropriate § 3553(a) factors,

(4) selects a sentence based on clearly erroneous facts, or (5) fails to adequately

explain the chosen sentence, including an explanation for any deviation from the

guideline range. Id. In reviewing the substantive reasonableness of a sentence,

we consider “the totality of the circumstances and . . . whether the sentence

achieves the sentencing purposes stated in § 3553(a).” United States v. Sarras,

575 F.3d 1191, 1219 (11th Cir. 2009). A sentence may be substantively

unreasonable where a district court “unjustifiably relied on any one § 3553(a)

factor, failed to consider pertinent § 3553(a) factors, selected the sentence

                                           3
arbitrarily, or based the sentence on impermissible factors.” Id. Nevertheless, the

district court “is permitted to attach great weight to one factor over others.”

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (citation and internal

quotations omitted). Although the district court must provide “sufficiently

compelling” justifications to support a sentence that varies from the Guidelines

sentencing range, we will not presume that a sentence outside the range is

unreasonable. United States v. Mateos, No. 08-17178, slip op. 127, 143 (11th Cir.

Oct. 19, 2010) (quoting Gall, 552 U.S. at 50, 128 S.Ct. at 597).

      Finally, although “the district court is required ‘to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct . . . ,’” United States v. Spoerke, 568 F.3d 1236, 1252

(11th Cir. 2009) (quoting 18 U.S.C. § 3553(a)(6)), “[a] well-founded claim of

disparity . . . assumes that apples are being compared to apples.” United States v.

Docampo, 573 F.3d 1091, 1102 (11th Cir. 2009) (citation omitted).

      Appellant’s sentences are procedurally reasonable because the district court

properly calculated the Guidelines sentencing range, treated the Guidelines as

advisory, considered the appropriate § 3553(a) factors, adequately explained its

reasons for the sentences, and did not err in considering appellant’s prior arrests.

Appellant’s sentences are substantively reasonable because district court properly

                                          4
emphasized the § 3553(a) factors of “the history and characteristics of the

defendant[,]” the need for the sentence “to promote respect for the law[,]” and the

need for the sentence “to afford adequate deterrence to criminal conduct[.]”

Furthermore, Quezada’s sentence did not create an unwarranted disparity among

similarly-situated defendants, and the district court did not depart upward pursuant

to the Guidelines, but varied upwards pursuant to ‘§ 3553(a).

      AFFIRMED.




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