                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-11878         ELEVENTH CIRCUIT
                                                                  OCTOBER 27, 2011
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________          CLERK

                           D.C. Docket No. 1:10-cr-00436-JOF-CCH-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                        Plaintiff –Appellee,

                                                versus

PAULO MARTINEZ-RUBI,

llllllllllllllllllllllllllllllllllllllll                        Defendant –Appellant.

                                     ________________________

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

                                           (October 27, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

         Paulo Martinez-Rubi pleaded guilty to illegally reentering the United States

after having been convicted of an aggravated felony, in violation of 8 U.S.C.
§ 1326. Martinez was sentenced to 96 months’ imprisonment, which was at the

high end of his guidelines range. Martinez now appeals and argues that his

sentence is substantively unreasonable. We conclude that Martinez’s sentence is

substantively reasonable and therefore we affirm.

                                        I.

      Martinez is a citizen of Mexico who first entered the United States in 1997

to escape retribution from a gang to which he once belonged. By 2001 Martinez

had been convicted of forgery in Georgia. After his release, he was convicted of

possession of marijuana and drug paraphernalia in Florida. Then Martinez

returned to Georgia, where he was convicted for aggravated assault. After his last

conviction, Martinez was deported to Mexico. But only five days after he was

deported, Martinez was arrested by the Border Patrol crossing into the United

States near Laredo, Texas. He then pleaded guilty to improperly entering the

United States in violation of 8 U.S.C. § 1325(a) and was once more deported. But

Martinez again returned to United States illegally and made his way to Florida,

where he was still on probation for marijuana possession. Once there, he violated

the terms of his probation and was imprisoned. After that imprisonment, he was

deported for the third time. Martinez, however, returned to Florida, where he was

twice convicted of burglary. Martinez was deported again. And after that

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deportation, Martinez returned to Florida, where he was again convicted of

burglary and deported for a sixth time.

      After his last deportation, Martinez returned once more to the United States

and shortly thereafter he was arrested for stealing a bicycle in Dekalb County,

Georgia. Martinez was then charged with illegal reentry, to which he pleaded

guilty. Martinez’s presentence investigation report (PSR) set his offense level at

21. His criminal history score was VI. That combination resulted in a guidelines

range of 77 to 96 months’ imprisonment. At his sentencing hearing, Martinez

argued for a substantial downward variance based on his upbringing, his heroin

addiction, and his HIV positive status. Martinez also argued that his criminal

history was a result of his addiction. The government asked for a sentence at the

top of the guidelines range, which the district court imposed. In imposing the

sentence of 96 months, the district court noted the seriousness of Martinez’s

criminal history, in particular his numerous burglary convictions, as well his

repeated illegal reentry to the United States. The court also noted the

physiological nature of heroin addiction and recommended that Martinez be

imprisoned at a facility with a drug rehabilitation program. Martinez now appeals

his sentence, which he argues is substantively unreasonable.




                                          3
                                                II.

      We review a sentence for substantive reasonableness under an abuse of

discretion standard. United States v. Wetherald, 636 F.3d 1315, 1320 (11th Cir.

2011). We will only vacate a sentence as substantively unreasonable if we are

definitely and firmly convinced that the sentence is outside the reasonable ranges

of sentences for a given case. United States v. Pugh, 515 F.3d 1179, 1191 (11th

Cir. 2008). Although we do not presume that a sentence that is within the properly

calculated guidelines range is reasonable, we ordinarily expect that is the case.

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). But even if a sentence

is within the guidelines, it must still, considering the totality of the circumstances,

achieve the purposes of 18 U.S.C. § 3553(a).1 Gall v. United States, 552 U.S. 38,

51 (2007);. Pugh, 515 F.3d at 1191 . The party challenging a sentence bears the

burden of establishing its unreasonableness. Pugh, 515 F.3d at 1189.


      1
          The purposes of § 3553(a) are:

               (1) the nature and circumstances of the offense and the history and characteristics
               of the defendant; (2) the need 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 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).

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      Martinez argues that his sentence is substantively unreasonable because it

does not account for the fact that his heroin addiction caused most of his criminal

behavior and as a result is greater than necessary. But the defendant’s personal

history is only one of among many factors that the district court has to consider in

imposing sentence. Here it is clear that the district court acknowledged Martinez’s

addiction and its physiological nature. To that end, the district court

recommended that Martinez serve his sentence somewhere he could receive drug-

rehabilitation treatment. But the district court also considered the severity of the

crimes Martinez had committed and the need to protect the public. Additionally,

the district court noted Martinez’s serial recidivism in illegally reentering the

country, which indicated that he had little respect for the law and required a

sentence that would be an effective deterrent. Although Martinez’s personal

history is unfortunate, given the various factors considered by the district court,

especially the need to protect the public and Martinez’s repeated illegal reentries,

we cannot say that we are left with a definite and firm conviction that Martinez’s

sentence is outside the range of reasonable sentences in his case.

      Also among the factors we look at to determine whether a sentence is

substantively reasonable is where the sentence stands in relation to the statutory

maximum for a given offense. United States v. Gonzalez, 550 F.3d 1319, 1324

                                           5
(11th Cir. 2008) (concluding that 50-month sentence for illegal reentry was

substantively reasonable given the difference between the sentence and the

statutory maximum of 10 years). Here Martinez’s sentence was 12 years below

the statutory maximum sentence of 20 years’ imprisonment he could have

received.

      Accordingly, we conclude that Martinez’s within-guidelines sentence is

substantively reasonable.

AFFIRMED.




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