                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 08-14222                   MAY 6, 2009
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                    D. C. Docket No. 08-80006-CR-KLR

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

REYNALDO GARCIA,
a.k.a. Alfredo,

                                                          Defendant-Appellant.


                        ________________________

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

                                (May 6, 2009)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Reynaldo Garcia appeals his 262-month sentence for conspiracy
to possess with intent to distribute at least 500 grams of cocaine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. On appeal, Garcia argues that his sentence

is unreasonable because the court improperly used Garcia’s alienage as a factor and

failed to properly weigh the factors listed in 18 U.S.C. § 3553(a). Specifically,

Garcia argues that several factors in this case warranted a substantial downward

variance to the statutory minimum sentence of 120 months, including: (1) Garcia’s

difficult childhood, (2) the fact that Garcia will be deported for this conviction,

(3) a sentence at the level set by the career offender guideline will not promote

respect for the law, (4) his prior punishments were minor in comparison to his

punishment for this offense, and (5) his criminal history is overstated.

      We review the sentence imposed by a district court for reasonableness.

United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765, 160 L. Ed. 2d 621

(2005). First, we must ensure that the district court committed no significant

procedural error, such as “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. ___,

___, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). If the district court’s

sentencing decision is procedurally sound, we then review the substantive



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reasonableness of the sentence for abuse of discretion. Id. A sentence may be

substantively unreasonable if it “does not achieve the purposes of sentencing stated

in § 3553(a),” if it is based on an impermissible factor, or if “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. Pugh, 515 F.3d 1179, 1191-1192 (11th Cir.

2008) (citations omitted).

      Pursuant to § 3553(a), the sentencing court shall impose a sentence

sufficient, but not greater than necessary, to (1) reflect the seriousness of the

offense, (2) promote respect for the law, (3) provide just punishment for the

offense, (4) deter criminal conduct, (5) protect the public from future crimes of the

defendant, and (6) provide the defendant with needed educational or vocational

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

consider the following factors in determining a particular sentence: (1) the nature

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

defendant; (2) the kinds of sentences available; (3) the guidelines range; (4) the

pertinent policy statements of the Sentencing Commission; (5) the need to avoid

unwarranted sentencing disparities; and (6) the need to provide restitution to

victims. 18 U.S.C. § 3553(a)(1), (3)-(7).



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      The appellant has the burden of establishing that the sentence is

unreasonable in light of the record and the § 3553(a) factors. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). While a sentence within the guideline

range is not per se reasonable, this Court ordinarily expects such a sentence to be

reasonable. Id.

      We conclude from the record that Garcia’s 262-month sentence is reasonable

because the district court did not consider an impermissible factor, properly

weighed the factors set forth in § 3553(a), and sentenced Garcia at the low end of

the guideline range. Accordingly, we affirm Garcia’s sentence.

      AFFIRMED.




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