            Case: 13-11446    Date Filed: 11/13/2013   Page: 1 of 4


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11446
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cr-20816-CMA-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

EDGARDO DIAZ,

                                                           Defendant-Appellant.

                       ________________________

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

                             (November 13, 2013)

Before HULL, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
                Case: 13-11446       Date Filed: 11/13/2013      Page: 2 of 4


       Edgardo Diaz appeals his sentence of 235-months’ imprisonment for

conspiracy to commit a Hobbs Act Robbery and commission of a Hobbs Act

Robbery, both in violation of 18 U.S.C. § 1951(a). Diaz argues his sentences are

unreasonable, citing the district court’s failure to address his arguments concerning

his assistance to the police, failure to address the disparity between his sentence

and his codefendants’ sentences, and improper speculation about his criminal

activity prior to his immigration to the United States from Cuba. On these bases,

Diaz contends the district court abused its discretion and asks that we vacate his

sentence and remand for resentencing. After review, 1 we affirm.

       In reviewing the reasonableness of a sentence, we first ensure that it was

procedurally reasonable. Gall v. United States, 552 U.S. 38, 41 (2007). In the

instant case, neither party disputes that the district court properly calculated the

guideline range, and both parties agreed to the facts described in the PSI as adopted

by the district court. In addition, the district court sufficiently considered the §

3553(a) factors when it asked itself, “What amount of time is sufficient but not

greater than necessary to protect our community from Mr. Diaz, who appears not

capable of ceasing his criminal activity?” See United States v. Turner, 474 F.3d

1265, 1281 (11th Cir. 2007) (“[T]he court need not state on the record that it has

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         We review the reasonableness of a sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007). The party who challenges the sentence
bears the burden to show that the sentence was unreasonable in light of the record and the §
3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
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considered each of the § 3553(a) factors.”). While the district court did not

expressly address Diaz’s arguments regarding the comparative leniency of his

codefendants’ sentences and his assistance to the government, this does not

indicate that the court failed to consider his contentions as part of its analysis of the

§ 3553(a) factors. For these reasons, the sentence the district court imposed was

procedurally reasonable. See Gall, 552 U.S. at 51.

      Next, we must examine whether the sentence was substantively reasonable

in light of the totality of the circumstances, id., reversing only if “we are left with a

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case,” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotations

marks omitted). Ordinarily, we expect a sentence falling within the guideline

range to be reasonable. United States v. Hunt, 526 F.3d at 739, 746 (11th Cir.

2008).

      In the instant case, Diaz’s sentence, which is within the guideline range, is

amply justified by the severity of his offense, his extensive criminal history

(despite long periods of incarceration), his tendency to violate probation and

parole, and the fact that he committed this crime even while wearing a GPS tracker

for parole purposes. Diaz argues the district court improperly speculated that he


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engaged in criminal activity prior to his immigration to the United States. See

United States v. Lee, 427 F.3d 881, 893 (11th Cir. 2005). However, the district

court expressly noted that this information was unavailable to it, and there is no

indication that the district court factored any suspicions of undocumented criminal

activity into its decision given the numerous other reasons it provided.

      For the foregoing reasons, Diaz has failed to carry his burden of showing

that the district court abused its discretion when it imposed a sentence at the high

end of the guideline range.

      AFFIRMED.




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