                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                        APRIL 21, 2008
                                                     THOMAS K. KAHN
                               No. 07-14041
                                                          CLERK
                            Non-Argument Calendar
                          ________________________

                     D. C. Docket No. 06-60262-CR-KAM

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                       versus

FRANKLIN GIOVANY ALAS,
a.k.a. Giovany Lionel Rodriguez,
a.k.a. Franklin Alas,
a.k.a. Franklin Alas Giovani,
a.k.a. Roberto Casas-Flores,
a.k.a. Roberto Cass,
a.k.a. Roberto Flores-Cass,
a.k.a. Roberto Flores-Case,
a.k.a. Roberto Cases,
a.k.a. Roberto Cases-Flores,

                                                 Defendant-Appellant.
                          ________________________

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

                                   (April 21, 2008)
Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

      Appellant Franklin Alas appeals his 73-month sentence imposed after he

pled guilty to one count of illegal reentry into the United States after being

deported, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Alas argues

that (1) the district court erred in denying a downward departure pursuant to

U.S.S.G. § 4A1.3, and (2) his sentence was greater than necessary to comply with

the goals of 18 U.S.C. § 3553(a).

Denial of downward departure

      Alas argues that his criminal history category over-represented the

seriousness of his criminal history, as illustrated in the commentary to U.S.S.G.

§ 4A1.3, but that the district court did not understand its authority to depart

downward from the guidelines range on that basis. Alternatively, Alas argues that

the basis for the district court’s denial of a departure was vague and that, therefore,

a remand is required.

      We generally do not review a district court’s denial of a downward departure

from the guidelines range, except in cases where the district court incorrectly

believed that it did not have authority to depart. United States v. Adams, 316 F.3d

1196, 1197-98 (11th Cir. 2003). After United States v. Booker, 543 U.S. 220, 246,



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125 S. Ct. 738, 757 (2005), which held that the Sentencing Guidelines were

advisory, we reaffirmed that we have no jurisdiction to review a district court’s

decision not to depart downward. United States v. Winingear, 422 F.3d 1241,

1245 (11th Cir. 2005).

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

category substantially over-represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit other crimes, a downward

departure may be warranted.” U.S.S.G. § 4A1.3(b)(1). “A downward departure

from the defendant’s criminal history category may be warranted if, for example,

the defendant had two minor misdemeanor convictions close to ten years prior to

the instant offense and no other evidence of prior criminal behavior in the

intervening period.” U.S.S.G. § 4A1.3, comment. (n.3).

       A review of the record reveals that the district court understood its authority

to depart from the guidelines range pursuant to U.S.S.G. § 4A1.3(b), but chose not

to depart. In addition, the record reflects that the district court clearly stated its

basis for denying the departure. Accordingly, we conclude that we lack

jurisdiction to review the denial of Alas’s motion for downward departure, and we

dismiss his appeal as to this issue.

Substantive Reasonableness



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         Alas argues that his sentence was greater than necessary to comply with the

statutory goals of 18 U.S.C. § 3553(a). He argues that a lower sentence would

have been sufficient in light of his criminal history, the nature and circumstances of

the offense, and his history and characteristics. Alas also argues that the district

court failed to consider the mitigating circumstances of his personal background.

         We review the final sentence imposed by the district court for

reasonableness. Booker, 543 U.S. at 264, 125 S. Ct. at 767. Unreasonableness

may be procedural – when a court’s procedure does not follow the requirements of

Booker – or substantive. United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.

2006).

         For a sentence to be procedurally reasonable, a district court must first

correctly calculate the range under the Guidelines and then must consider the

factors set forth in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786

(11th Cir. 2005). “[A]n acknowledgment by the district court that it has considered

the defendant’s arguments and the factors in section 3553(a) is sufficient under

Booker.” Id.

         If the district court committed no significant procedural error, we evaluate a

sentence’s substantive reasonableness under an abuse-of-discretion standard,

considering the totality of the circumstances. Gall v. United States, 552 U.S. ___,



                                             4
___, 128 S. Ct. 586, 597 (2007). Pursuant to § 3553(a), the sentencing court shall

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

purposes set forth in paragraph (2) of this subsection,” namely to reflect the

seriousness of the offense, promote respect for the law, provide just punishment for

the offense, deter criminal conduct, protect the public from future crimes of the

defendant, and provide the defendant with needed educational or vocational

training or medical care. See 18 U.S.C. § 3553(a)(2). The sentencing court must

also consider the following factors in determining a particular sentence: the nature

and circumstances of the offense and the history and characteristics of the

defendant, the kinds of sentences available, the guidelines range, the pertinent

policy statements of the Sentencing Commission, the need to avoid unwanted

sentencing disparities, and the need to provide restitution to any victims. See 18

U.S.C. § 3553(a)(1), (3)-(7). The burden of showing that a sentence is

unreasonable is on the party challenging the sentence. Talley, 431 F.3d at 788.

There is a range of reasonable sentences, and we ordinarily expect a sentence in the

guideline range to be reasonable. Id.

      After reviewing the record and reading the parties’ briefs, we conclude that

the district court correctly calculated the guideline range, considered the 18 U.S.C.

§ 3553(a) factors, and heard Alas’s arguments in mitigation. Moreover, we



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conclude that the district court did not abuse its discretion in finding that a

sentence four months below the applicable guideline range was necessary to

comply with the purposes of § 3553(a). Accordingly, we affirm Alas’s sentence.

      DISMISSED IN PART; AFFIRMED IN PART.




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