              Case: 12-13695    Date Filed: 02/21/2013   Page: 1 of 7

                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-13695
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 1:12-cr-00069-CAP-AJB-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ESTEBAN MIGUEL-ANDRES,
a.k.a. Juan Carlos Morillo-Aguilar,

                                                             Defendant-Appellant.

                          ________________________

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

                               (February 21, 2013)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 12-13695       Date Filed: 02/21/2013      Page: 2 of 7

       On April 22, 2012, appellant Esteban Miguel-Andres, a citizen of Mexico,

pled guilty to illegal re-entry, in violation of 8 U.S.C. §§ 1326(a), (b)(1), and on

June 28, 2012, the District Court sentenced him to a prison term of 21 months.

The court fashioned appellant’s sentence first by departing upward from the

Guidelins sentence range of 2 to 8 months to a range of 9 to 15 months pursuant to

U.S.S.G. § 4A1.3, and then, using the sentencing factors of 18 U.S.C. § 3553(a),

imposing an upward variance—all because of appellant’s extensive criminal

history, which we digest in the margin. 1 On appeal, Miguel-Andres argues that his

sentence was procedurally and substantively unreasonable.

                                               I.

       Whether appellant’s sentence is procedurally unreasonable turns on whether

the District Court abused its discretion in carrying out the procedures necessary to

fashion a sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169

L.Ed.2d 445 (2007). A court abuses its discretion if it treats the Guidelines as

mandatory rather than advisory, erroneously calculates the Guidelines sentence

range, fails to consider the purposes of sentencing set out in 18 U.S.C. § 3553(a),

finds facts that are clearly erroneous, or fails to explain why it chose the sentence



       1
         Appellant had a history of 10 arrests between 2001 and 2012, which led to convictions
for domestic violence on six separate occasions. He had been removed from the United States
on five separate occasions between 2007 and 2010. His current illegal re-entry offense marks the
sixth time he has been found illegally present in the United States.
                                               2
                 Case: 12-13695       Date Filed: 02/21/2013        Page: 3 of 7

imposed. Gall, 552 U.S. at 51, 128 S.Ct. at 597; United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005).

       Appellant argues that the District Court abused its discretion because (1) it

failed to follow the procedure for departing from the Guidelines sentence range;

(2) the evidence of his criminal record was unreliable: and (3) it failed adequately

to explain the basis for its upward variance. The gist of the first argument is that

the court failed to move incrementally along the guidelines, explain why

appellant’s criminal history category of III was inadequate, or compare his

category with others in category V, which the court chose.

       Appellant failed to object to the court’s alleged failure to comply with the

departure procedure or its purported failure to explain the basis for its upward

variance. We therefore review such failures for plain error.2 We find none, much

less error. The only objection appellant made at sentencing concerned the

reliability of the evidence concerning his criminal record. We now address that

objection.

       Appellant contends that the evidence of his criminal record was unreliable

because, consisting of computer printouts, it constituted hearsay. The printouts


       2
          To establish plain error, appellant must show that (1) an error occurred; (2) the error
was plain; (3) the error affected his substantial rights; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S.
725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). In this case, if we assume that error
occurred, it did not affect appellant’s substantial rights or the fairness, integrity or public
reputation of the sentencing proceedings.
                                                 3
              Case: 12-13695     Date Filed: 02/21/2013    Page: 4 of 7

contained a disclaimer as to accuracy, and the court indicated that it “had trouble

figuring out what these printouts say.”

      Under U.S.S.G. § 4A1.3, a district court may impose an upward departure if

“reliable information indicates that the defendant’s criminal history category

substantially under-represents the seriousness of the defendant’s criminal history or

the likelihood that the defendant will commit other crimes.” U.S.S.G.

§ 4A1.3(a)(1) (emphasis added). While the mere fact of an arrest is not

sufficiently reliable to support a departure, § 4A1.3 grants the district courts broad

authority to consider “reliable information” when contemplating a departure; the

court may consider such things as the summary of the facts surrounding the

incident. United States v. Williams, 989 F.2d 1137, 1142 (11th Cir. 1993).

      We review for clear error the district court’s finding of a prior conviction.

See United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999) (finding “no

clear error” in district court’s finding that defendant had been convicted of carrying

a concealed weapon). Although the Government bears the burden of establishing a

prior conviction by a preponderance of the evidence, it does not need to present a

certified copy of the conviction. See id. In Wilson, for example, the Government

presented factual statements contained in the presentence report, on-the-record

statements of a probation officer, and notes of another probation officer. Id. This

information, taken together, was sufficiently reliable to establish a conviction. Id.


                                           4
               Case: 12-13695       Date Filed: 02/21/2013   Page: 5 of 7

      To prove appellant’s prior convictions, the Government submitted computer

printouts from the website of the municipal court of Hamilton County, Ohio. At

the sentencing hearing, the Government entered into evidence a letter from a

federal probation officer in Ohio confirming the accuracy of these printouts. The

District Court stated that it found this evidence reliable, and nothing in the record

exists to challenge this finding.

      In addition, the court was permitted to consider the printouts even though

they constituted hearsay. First, the fact that the probation officer confirmed their

validity shows that they were reliable. See Anderton, 136 F.3d at 751. Second, the

court explicitly determined that they were credible. See id. Finally, the court gave

appellant an opportunity to show that they were not reliable and to rebut the

information contained within them. See id. He did neither.

      In sum, we reject appellant’s argument that his sentence is procedurally

unreasonable. We turn, then, to his argument that it is substantively unreasonable.


                                            II.

      Appellant contends that his sentence is substantively unreasonable because

the variance was greater than necessary to achieve the sentencing goals of §

3553(a) and was based on his criminal history to the exclusion of the other

§ 3553(a) factors.



                                            5
              Case: 12-13695      Date Filed: 02/21/2013   Page: 6 of 7

      We review the reasonableness of a sentence for abuse of discretion. Gall,

552 U.S. at 51, 128 S.Ct. at 597. A sentence must be “sufficient, but not greater

than necessary to comply with the purposes” of sentencing set out in § 3553(a)(2),

including the need to reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense, deter criminal conduct, and protect

the public from the defendant’s future criminal conduct. See 18 U.S.C.

§ 3553(a)(2). Additionally, the court must consider the nature and circumstances

of the offense, the history and characteristics of the defendant, the kinds of

sentences available, the applicable guideline range, the pertinent policy statements

of the Sentencing Commission, the need to avoid unwarranted sentencing

disparities, and the need to provide restitution to victims. Id. § 3553(a)(1),(3)-(7).

      Although sentences outside the guidelines are not presumed to be

unreasonable, we take the degree of any variance into account. United States v.

Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). However, we defer to the court's

decision that the § 3553(a) factors justify the extent of the variance. Gall, 552 U.S.

at 51, 128 S.Ct. at 597.

      We conclude that appellant’s sentence is substantively reasonable in light of

the record and § 3553(a) factors. First of all, the sentence, 21 months, was below

the statutory maximum sentence, 24 months. This suggests that the sentence was

reasonable. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)

                                           6
              Case: 12-13695     Date Filed: 02/21/2013   Page: 7 of 7

(citing fact defendant’s sentence was below the statutory maximum as evidence

defendant’s sentence was reasonable). Moreover, the sentence met the goals of §

3553(a)(2). Appellant has an extensive criminal history. He had been convicted of

one count of assault, five counts of domestic violence, and one count of family

violence battery between 2002 and 2012. He also demonstrated a high potential

for recidivism. He had been deported from the United States five times.

Considering his criminal history and disregard for the law, the court could

reasonably have concluded that an upward variance in addition to the upward

departure was necessary to promote respect for the law, provide just punishment,

deter appellant from further criminal activity, and protect the public. See 18

U.S.C. § 3553(a)(2).

      Appellant’s sentence is, accordingly,

      AFFIRMED.




                                          7
