           Case: 17-10624   Date Filed: 07/06/2017   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10624
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:16-cr-80139-DMM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

MATUSALEN BRIONES-LOPEZ,
a.k.a. Andres Lainez-Diaz,

                                                         Defendant-Appellant.

                      ________________________

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

                              (July 6, 2017)



Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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      Matusalen Briones-Lopez appeals his above-guidelines sentence of 12-

months’ imprisonment for illegally reentering the United States without permission

after having previously been deported and removed, in violation of 8 U.S.C.

§ 1326(a). He asserts his sentence is substantively unreasonable because the

district court gave undue weight to then-pending state-court charges against him.

After review, we affirm.

      We review the substantive reasonableness of a sentence under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). “A

district court abuses its discretion when it (1) fails to afford consideration to

relevant factors that were due significant weight, (2) gives significant weight to an

improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc) (quotations omitted). On substantive reasonableness review,

we may vacate the sentence only if we are left with the definite and firm conviction

that the district court committed a clear error of judgment in weighing the

§ 3553(a) factors to arrive at an unreasonable sentence based on the facts of the

case. Id. at 1190.

      The district court did not abuse its discretion by varying upward based on

the nature of Briones-Lopez’s state court offense as stated in the PSI. Briones-

Lopez did not object to those facts and does not dispute them on appeal, though he


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noted they had not been adjudicated. The district court could therefore rely on

those facts for sentencing purposes. See United States v. Wade, 458 F.3d 1273,

1277 (11th Cir. 2006) (failing to object to allegations of fact in a presentence

investigation report admits those facts for sentencing purposes). The district court

did not err in considering the facts of the state-court case in evaluating the nature

and circumstances of the offense, because Briones-Lopez committed the alleged

attempted sexual battery and burglary after illegally reentering the United States.

The uncontested facts established Briones-Lopez admitted he tried to rape the

victim and assisted another man in sexually battering her. Whether or not Briones-

Lopez had yet been convicted of the crime was irrelevant to the district court’s

evaluation of the seriousness of the violent conduct that Briones-Lopez had

admitted. See United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006)

(holding a sentencing court may consider even uncharged or acquitted conduct as

long as the facts are proved by a preponderance of the evidence).

      While the district court heavily weighed the nature and circumstances of the

offense, it also considered other factors. See United States v. Shaw, 560 F.3d 1230,

1237 (11th Cir. 2009) (explaining while the district court must evaluate all of the

§ 3553(a) factors, it is permitted to attach great weight to one factor over others).

It discussed Briones-Lopez’s history by noting his previous two removals. It

examined the possibility of an unwarranted sentencing disparity by asking about


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the sentence Briones-Lopez’s codefendant received and whether there was a

difference in culpability. The district court ultimately determined a sentence

within the Guidelines range was not justified, despite the possibility of a

sentencing disparity. In imposing a one-year sentence, the court still imposed a

sentence one year below the statutory maximum of two years, which is an

indication the sentence is reasonable. 8 U.S.C. § 1326(a) (providing an alien who

illegally reenters the United States without permission after having been removed

faces a statutory maximum penalty of two years’ imprisonment); United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (determining a sentence imposed

well below the statutory maximum penalty is another indicator of a reasonable

sentence). The district court did not make a clear error in judgment by weighing

the sentencing factors, and the sentence imposed was substantively reasonable.

See Irey, 612 F.3d at 1190.

      AFFIRMED.




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