            Case: 13-15904    Date Filed: 09/23/2014   Page: 1 of 6


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15904
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:13-cr-00267-AT-AJB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

VICTOR ALONSO-MARTINEZ,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (September 23, 2014)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      Victor Alonso-Martinez appeals the substantive reasonableness of his 36-

month imprisonment sentence for illegal reentry into the United States, in violation

of 8 U.S.C. § 1326(a), (b)(2). We affirm.

                                 I. BACKGROUND

      Alonso-Martinez was arrested on May 29, 2013 in Georgia for driving

without a valid license. Investigation revealed he previously had been deported

and was not lawfully in the United States. He was transferred to the custody of

United States Immigration and Customs Enforcement (“ICE”). In July 2013, a

federal grand jury charged Alonso-Martinez with illegal reentry into the United

States following deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). He pled

guilty without a written plea agreement.

      Under the Sentencing Guidelines, Alonso-Martinez had a base offense level

of eight, pursuant to U.S.S.G. § 2L1.2(a). He received a 16-point increase under §

2L1.2(b)(1)(A)(ii), because he previously had been deported after sustaining a

conviction for a felony crime of violence. Specifically, Alonso-Martinez had been

convicted of two counts of aggravated assault in Kansas. He had placed his former

girlfriend in fear of immediate bodily harm using deadly weapons: broken beer

bottles and a knife. Alonso-Martinez had been sentenced to 12 months of

probation in Kansas, but he had been deported to Mexico before he could complete

his sentence.


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      In this case, Alonso-Martinez received a three-point reduction to his offense

level for acceptance of responsibility under § 3E1.1(a) and (b), resulting in a total

offense level of 21. Alonso-Martinez had a criminal history category of I and a

Sentencing Guidelines range of 37 to 46 months of imprisonment.

      Before sentencing, Alonso-Martinez requested a downward departure and

argued the 16-point increase under § 2L1.2(b)(1)(A)(ii) for his aggravated assault

convictions grossly overstated the seriousness of his prior conduct. He contended

the aggravated assault convictions should not be deemed crimes of violence,

because the victim did not sustain injuries during the incident. Alonso-Martinez

also requested a downward variance based on the mitigating factors of his strong

work ethic and his desire to support his family.

      The district judge denied Alonso-Martinez’s request for a downward

departure and found he had engaged in frightening behavior. The judge

determined Alonso-Martinez’s former girlfriend justifiably had feared for her life.

Moreover, children had been present when he threatened her with broken beer

bottles and a knife. The judge acknowledged Alonso-Martinez had a strong work

ethic and a strong desire to support his family in Mexico. Nevertheless, the judge




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concluded a sentence at the low end of the Sentencing Guidelines range was

sufficient and sentenced Alonso-Martinez to 36 months of imprisonment. 1


                                    II. DISCUSSION

       On appeal, Alonso-Martinez argues his 36-month sentence is substantively

unreasonable, because the district judge placed undue weight on the Sentencing

Guidelines range, which was based entirely on his prior convictions for aggravated

assault. A district judge must impose a sentence that is both procedurally and

substantively reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,

597 (2007). Alonso-Martinez argues only that his sentence is substantively

unreasonable and has abandoned any arguments regarding procedural

unreasonableness. United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004)

(per curiam). We review the reasonableness of a sentence “under a deferential

abuse-of-discretion standard.” Gall, 552 U.S. at 41, 128 S. Ct. at 591.2 The party

who challenges the sentence bears the burden of establishing that it is

unreasonable. United States v. Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014).




       1
           The low end of the Sentencing Guidelines range was 37 months of imprisonment. The
district judge considered the 36-month sentence to be within the Guidelines range, because the
judge gave Alonso-Martinez credit for time served in ICE custody.
         2
           Because Alonso-Martinez did not object to the substantive reasonableness of his
sentence at sentencing, the government argues our review may be for plain error. We need not
decide whether plain-error review applies, however, because we conclude there was no error,
plain or otherwise.
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      We examine whether a sentence is substantively reasonable in view of the

totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128

S. Ct. at 597. The § 3553(a) factors to be considered by a sentencing court include

(1) the nature and circumstances of the crime and the history and characteristics of

the defendant, (2) the need for the sentence imposed to reflect the seriousness of

the crime, to promote respect for the law, and to provide just punishment for the

offense, (3) the need to protect the public from further crimes of the defendant, and

(4) the applicable Guidelines range. 18 U.S.C. § 3553(a). A sentence is

“substantively unreasonable if it does not achieve the purposes of sentencing stated

in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)

(internal quotation marks omitted). In addition, a sentence may be substantively

unreasonable if a district judge unjustifiably relied on any one § 3553(a) factor,

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

based the sentence on impermissible factors. Id. at 1191-92.

      Alonso-Martinez has not shown his sentence is substantively unreasonable

in light of the totality of the circumstances and the § 3553(a) factors. The district

judge recognized the 16-point increase for his prior aggravated assault convictions

was “exceedingly rough justice,” ROA at 187, but still concluded the prior conduct

involved more than mere threats. Alonso-Martinez had threatened his former

girlfriend with broken beer bottles and a knife, while he was intoxicated and with


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children present. The victim justifiably had feared for her life. The judge also

considered Alonso-Martinez’s work ethic and desire to care for his family and

noted she had the “highest of respect” for those characteristics. ROA at 189.

Nevertheless, the judge determined she could not ignore Alonso-Martinez’s prior

criminal conduct. Under the totality of the circumstances and the § 3553(a)

factors, the district judge did not abuse her discretion by imposing a 36-month

imprisonment sentence.

      AFFIRMED.




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