                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________          U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  April 23, 2008
                                No. 07-13722                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                       D. C. Docket No. 07-60024-CR-PAS

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

JOSE ADALBERTO DIAZ,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (April 23, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

      Defendant-appellant Jose Adalberto Diaz was indicted for illegal re-entry, in

violation of 8 U.S.C. § 1326. He pleaded guilty without a written plea agreement.
As part of his plea, he admitted that he was a citizen of El Salvador, had been

deported from the United States in June 2004, and had been arrested for a traffic

violation in the United States in January 2007, at which time he was discovered to

be in the country without permission.

      The probation officer prepared a presentence investigation report (“PSI”),

calculating the adjusted offense level as 21. In calculating Diaz’s criminal history

as category VI, the probation officer listed prior convictions for burglaries, sale or

transportation of controlled substances, possession of marijuana, possession with

intent to sell or deliver cocaine, and trafficking in cocaine. Diaz’s resulting

guidelines range was 77 to 96 months’ imprisonment.

      Relevant to this appeal, Diaz objected to the PSI calculations as follows: he

argued he should receive a downward departure or variance in consideration of the

sentencing factors in 18 U.S.C. § 3553(a); his criminal history category over-

represented the seriousness of his criminal record; and the court should consider

his reasons for illegally re-entering the country, namely that his son was losing his

sight in one eye due to a degenerative disease and required medical care.

      At sentencing, the court noted that Diaz had been deported in 1988, 1996,

and 2004, but this was the first time he had been charged with illegal re-entry. The

court acknowledged that Diaz had re-entered in order to attend to his ailing son and



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to assist in providing care for his children, but found that a sentence at the low end

of the guidelines range was fair and reasonable under the § 3553(a) factors. The

court explained that it was necessary to promote respect for society’s laws, and that

Diaz’s background made a sentence within the guidelines range reasonable.

Although the court briefly considered and intended to apply a downward variance

of two months, it concluded that a sentence of 77 months’ imprisonment was fair

and reasonable. Diaz now appeals, arguing that his sentence was unreasonable

because the court failed to consider his motivation for re-entering and placed too

much emphasis on the sentencing guidelines, which were merely one factor the

court should have considered.

      “‘In reviewing the ultimate sentence imposed by the district court for

reasonableness, [this court] consider[s] the final sentence, in its entirety, in light of

the § 3553(a) factors.’” United States v. Valnor, 451 F.3d 744, 750 (11th Cir.

2006) (quoting United States v. Thomas, 446 F.3d 1348, 1349 (11th Cir. 2006)).

This reasonableness standard is deferential. United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). The Supreme Court recently clarified this standard as a

review for abuse of discretion. Gall v. United States, ---U.S. ----, 128 S.Ct. 586,

594, 169 L.Ed.2d 445 (2007). Specifically, the district court must impose a

sentence that is both procedurally and substantively reasonable. Id. at 597. When



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reviewing the sentence for procedural reasonableness, this court must “ensure that

the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a

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

chosen sentence.” Gall, 128 S.Ct. at 597.

       “The sentencing judge should set forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States, 127

S.Ct. 2456, 2468 (2007). Generally, when sentencing inside the advisory guideline

range, the district court is required neither to state explicitly that it has considered

each of the § 3553(a) factors in open court, nor to give a lengthy explanation for its

sentence. See United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (citing

Rita, 127 S.Ct. at 2468-69).

       Substantive reasonableness involves inquiring whether the court abused its

discretion in determining that § 3553(a) factors support the sentence in question.

Gall, 128 S.Ct. at 597, 600. Pursuant to § 3553(a), the sentencing court shall

impose a sentence “sufficient, but not greater than necessary” to comply with the

purposes of sentencing listed in § 3553(a)(2), namely reflecting the seriousness of



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the offense, promoting respect for the law, providing just punishment for the

offense, deterring criminal conduct, protecting the public from future criminal

conduct by the defendant, and providing the defendant with needed educational or

vocational training or medical care. See 18 U.S.C. § 3553(a)(2). Section 3553(a)

also requires the sentencing court to consider the nature and circumstances of the

offense, the Guidelines range, and the need to avoid unwarranted sentence

disparities. See 18 U.S.C. § 3553(a)(1), (4),(6). Diaz bears the burden of

establishing that the sentence is unreasonable. United States v. Bohannon, 476

F.3d 1246, 1253 (11th Cir.), cert. denied, 127 S.Ct. 2953 (2007). We may

conclude that a district court abused its discretion if it has weighed the factors in a

manner that demonstrably yields an unreasonable sentence. United States v. Pugh,

515 F.3d 1179, 1191(11th Cir. 2008).

      Here, upon review of the record, we conclude that the district court did not

abuse its discretion, and the sentence imposed was reasonable. The court

considered Diaz’s motivation, and struggled with whether to impose a downward

variance in light of Diaz’s son’s condition. Upon further consideration, however,

the court concluded that a sentence within the guideline range was fair and

reasonable and was necessary to promote respect for the law. The court noted that

Diaz had a lengthy criminal history and that he had illegally re-entered two times



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previously without being charged or convicted. In light of these factors, the court

did not abuse its discretion by imposing a sentence at the low end of the guidelines

range. See Pugh, 515 F.3d at 1191-1192.

      Accordingly, we AFFIRM Diaz’s sentence.




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