              Case: 13-14243    Date Filed: 05/12/2014   Page: 1 of 8


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14243
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 1:13-cr-00056-AT-AJB-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                        versus

OTTO RENE SANCHEZ-GARCIA,

                                                             Defendant-Appellant.

                          ________________________

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

                                  (May 12, 2014)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Otto Rene Sanchez-Garcia appeals his 57-month sentence, imposed

following his conviction for illegally reentering the United States after having

previously been deported. He argues that the district court erred by: (1) not ruling
               Case: 13-14243      Date Filed: 05/12/2014   Page: 2 of 8


on his challenge to the Sentencing Guidelines for immigration violations; (2) not

understanding that it had the authority to “deconstruct” the Sentencing Guidelines

and recalculate his guideline range; and (3) imposing an unreasonable sentence.

After careful review, we affirm.

      We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)). When sentencing objections are raised for the first time on appeal,

we consider them under the plain error doctrine. United States v. Garrison, 133

F.3d 831, 848 (11th Cir. 1998). In order to establish plain error, a defendant must

show: (1) error (2) that is plain and (3) affects substantial rights. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). If all three conditions are met,

then we may exercise our discretion to correct an error if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id.

      First, we are unpersuaded by Sanchez-Garcia’s claim that the court failed to

rule on his challenges under Kimbrough v. United States, 552 U.S. 85 (2007), that

the illegal reentry guideline lacked empirical support and was developed in a

manner inconsistent with the Sentencing Commission’s exercise of its

characteristic institutional role. Under Rule 32, when the defendant objects at

sentencing, the district court must “rule on the dispute or determine that a ruling is


                                           2
              Case: 13-14243     Date Filed: 05/12/2014   Page: 3 of 8


unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.”        Fed.R.Crim.P. 32(i)(3)(B).

Here, the district court suspended the sentencing hearing in order to ensure that it

had sufficient information to consider Sanchez-Garcia’s Kimbrough challenge to

U.S.S.G. § 2L1.2(b)(1)(A)(ii), it stated expressly that it read the sentencing

memoranda, and it ensured that he no longer claimed his aggravated robbery

conviction was overrepresented. The court found that Sanchez-Garcia held the

firearm   during   the   aggravated    robbery,    resolving   its   concerns   about

overrepresenting the seriousness of the prior conviction, and then found that the

guideline range, without modification, was appropriate. Notably, Sanchez-Garcia

did not object below to the district court’s treatment of the issue. Thus, contrary to

Sanchez-Garcia’s claim, the court considered and rejected his Kimbrough

argument and did not err, much less plainly err, by failing to do so.

      We also reject Sanchez-Garcia’s argument that the district court failed to

understand that it could “deconstruct” and recalculate his guideline range. When a

guidelines provision is not supported by “empirical data and national experience,”

a district court does not abuse its discretion if it decides that a within-guidelines

sentence is “greater than necessary to achieve § 3553(a)’s purposes.” Kimbrough,

552 U.S. at 109-10 (quotation omitted). But a lack of empirical evidence “is not an

independent ground that compels the invalidation of a guideline.” United States v.


                                          3
               Case: 13-14243    Date Filed: 05/12/2014   Page: 4 of 8


Snipes, 611 F.3d 855, 870 (11th Cir. 2010). It is merely “one factor that a district

court could consider in exercising its post-[United States v. Booker, 543 U.S. 220

(2005)] right to depart from the guidelines.” Id. It does not, however, “require the

wholesale invalidation of sentencing guidelines.” Id.

      Here, as we’ve already determined, the district court considered and rejected

Sanchez-Garcia’s request, under Kimbrough, that it “deconstruct” the 16-level

enhancement.     The court questioned him regarding the exact nature of his

argument, in order to understand whether he was requesting a recalculation of the

guideline range, a departure, or a variance. The court never expressed doubt or

confusion as to its authority to consider policy issues in order to impose a sentence

outside the guideline range in the PSI, and its only comments regarding its

hesitancy to act on policy concerns related to the taxpayer burden of incarceration,

not the policies underlying the 16-level enhancement. The court thus recognized

its authority, and was not required to sentence outside of the guideline range just

because Sanchez-Garcia argued that the applicable enhancement lacked a sufficient

foundation in empirical data. Id. We affirm this issue as well.

      Finally, we find no merit to Sanchez-Garcia’s claim that his sentence was

unreasonable. In reviewing sentences for reasonableness, we typically perform

two steps. Pugh, 515 F.3d at 1190. First, we “‘ensure that the district court

committed no significant procedural error, such as failing to calculate (or


                                         4
                 Case: 13-14243       Date Filed: 05/12/2014       Page: 5 of 8


improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence -- including an

explanation for any deviation from the Guidelines range.’” Id. (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)). 1 The district court is not required to

explicitly state that it considered the § 3553(a) factors, as long as the court’s

comments demonstrate that it considered the factors when imposing sentence.

United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007).

       If we conclude that the district court did not procedurally err, we consider

the “‘substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 515

F.3d at 1190 (quoting Gall, 552 U .S. at 51). “[W]e will not second guess the

weight (or lack thereof) that the [court] accorded to a given [§ 3553(a)] factor ... as

long as the sentence ultimately imposed is reasonable in light of all the

circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir.

2010) (quotation, alteration and emphasis omitted). We will not reweigh the


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
                                                 5
              Case: 13-14243    Date Filed: 05/12/2014    Page: 6 of 8


relevant § 3553(a) factors, and will not remand for resentencing unless the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

imposing a sentence outside the range of reasonable sentences. United States v.

Langston, 590 F.3d 1226, 1237 (11th Cir. 2009).          The party challenging the

sentence bears the burden to show it is unreasonable. United States v. Tome, 611

F.3d 1371, 1378 (11th Cir. 2010). While we do not automatically presume a

sentence falling within the guideline range to be reasonable, we ordinarily expect

that sentence to be reasonable. United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). A sentence imposed well below the statutory maximum penalty is

another indicator of reasonableness. United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008).

      In United States v. Adeleke, 968 F.2d 1159, 1160-61 (11th Cir. 1992), we

upheld the enhancements set forth in § 2L1.2(b)(1) because: (1) they rationally

promote the policy of deterring aliens who are also convicted felons from

reentering the United States; and (2) they do not result in improper double counting

because the Sentencing “Commission clearly intended prior felonies to count

against defendants under both the criminal history section and § 2L1.2.” It is true

that, following the Supreme Court’s decision in Booker district courts may

disagree with the policy judgments of the Sentencing Commission. See United

States v. Irey, 612 F.3d 1160, 1217-18 (11th Cir. 2010) (en banc). The district


                                         6
              Case: 13-14243    Date Filed: 05/12/2014   Page: 7 of 8


court still must calculate the advisory guidelines range correctly, however. See

Pugh, 515 F.3d at 1190.

      As for procedural reasonableness, the district court did not err in calculating

the guideline range, nor in treating the guidelines as mandatory. It considered the

§ 3553(a) factors and the policy arguments Sanchez-Garcia raised, and found that

the 57-month sentence was sufficient but not greater than necessary to comply with

the purposes of sentencing, which is more than sufficient under our law.

      As for substantive reasonableness, his history of repeated deportations and

criminal offenses supports the sentence the district court imposed at the bottom of

the guideline range. 18 U.S.C. § 3553(a)(1). Sanchez-Garcia demonstrated his

disrespect for the law by continuing to illegally return to the United States and

violating its laws, and a 57-month period of incarceration would promote respect

for the law, protect the public, and deter future criminal conduct in a manner that

suspended sentences and deportation alone did not. Id. § 3553(a)(2). Additionally,

his sentence was well below the statutory maximum 20-year sentence, which is

indicative of reasonableness. Gonzalez, 550 F.3d at 1324. Moreover, the district

court’s rejection of Sanchez-Garcia’s arguments under Kimbrough, which we’ve

already discussed, does not render the sentence unreasonable. Finally, we’ve

previously rejected the argument that the § 2L1.2(b)(1) enhancement produces

double counting, so his sentence is not unreasonable on that basis, either. Adeleke,


                                         7
              Case: 13-14243    Date Filed: 05/12/2014     Page: 8 of 8


968 F.2d at 1160-61. As a result, Sanchez-Garcia’s 57-month sentence, imposed at

the bottom of the guideline range, was not unreasonable.

      AFFIRMED.




                                        8
