                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 10-13015                NOVEMBER 28, 2011
                            Non-Argument Calendar               JOHN LEY
                                                                  CLERK
                          ________________________

                   D.C. Docket No. 5:10-cr-00011-HL-CWH-1

UNITED STATES OF AMERICA,
                                                               Plaintiff - Appellee,

      versus

RIGOBERTO TORRES-MALDONADO,
                                                            Defendant - Appellant.

                          ________________________

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

                              (November 28, 2011)

Before EDMONDSON, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

      Rigoberto Torres-Maldonado appeals his 108-month sentence for illegally

re-entering the United States after having been deported as an aggravated felon, 8

U.S.C. § 1326(a)(2) and (b)(2). No reversible error has been shown; we affirm.
       Based on his criminal record, Torres-Maldonado was assigned the

maximum criminal history category of VI,1 which -- combined with his total

offense level of 17 -- yielded an advisory guidelines range of 51 to 63 months’

imprisonment. The district court concluded, however, that this criminal history

category did not accurately reflect the seriousness of Torres-Maldonado’s criminal

history, or the likelihood that he would commit other crimes, and that an upward

departure under U.S.S.G. § 4A1.3 was warranted. In particular, the court noted

that Torres-Maldonado had illegally entered the United States at least six times --

twice after being convicted for illegal re-entry -- had repeatedly ignored

administrative orders prohibiting him from re-entering the country without

permission, and had been convicted for eight other crimes: including burglary, the

sale of cocaine, criminal trespass, criminal possession of stolen property, resisting

arrest, and attempted petty larceny. Pursuant to section 4A1.3, the sentencing

court determined that a 6-step increase in offense level was appropriate, yielding

an advisory guidelines range of 92 to 115 months’ imprisonment.2 The court then

sentenced Torres-Maldonado to 108 months’ imprisonment.


       1
        A defendant is assigned a criminal history category of VI when he has 13 or more
criminal history points. Torres-Maldonado had 17 criminal history points.
       2
        Torres-Maldonado does not challenge the upward departure itself, or the manner in
which it was calculated.

                                               2
      On appeal, Torres-Maldonado argues that his sentence procedurally is

unreasonable because the district court failed to verify that he had been afforded

an opportunity to read and to discuss his Presentence Investigation Report (“PSI”)

with his lawyer, pursuant to Fed.R.Crim.P. 32(i)(1)(A). Because Torres-

Maldonado did not object to this alleged error -- and concedes that plain error

review is appropriate -- we review this issue only for plain error. See United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

      Even if we assume that the district court plainly erred when it failed to ask

whether Torres-Maldonado had read the PSI and discussed it with his lawyer,

Torres-Maldonado did not establish that the error affected his substantial rights.

See United States v. Curtis, 400 F.3d 1334, 1336 (11th Cir. 2005) (concluding

that, to demonstrate plain error, a defendant bears the burden to show that the error

affected his substantial rights, meaning that it affected the outcome of the

proceedings below). Torres-Maldonado argues that Rule 32 serves as an

important safeguard because, once a defendant fails to object to factual errors in

the PSI, he waives the error: those facts are deemed admitted. Of importance, he

does not contend, however, that he actually was deprived of the opportunity to

read the PSI and discuss it with his lawyer before sentencing or that the PSI

actually contained factual errors that should have been corrected. As a result, he

                                          3
failed to demonstrate that the court’s error affected the outcome of the

proceedings.

        Torres-Maldonado also argues that his sentence procedurally is

unreasonable because the district court failed to consider his mitigating evidence

or to explain adequately its reasons for imposing its sentence. We review the

reasonableness of a district court’s sentence under a deferential abuse of discretion

standard of review. Gall v. United States, 128 S.Ct. 586, 591 (2007). The party

challenging the sentence bears the burden of establishing that the sentence is

unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A

sentence may be procedurally unreasonable if the district court fails to consider the

factors set forth in section 3553(a) or to explain adequately the chosen sentence.3

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). The district

court, however, is not required to discuss or state each factor explicitly. Id. at

1324.

        The record shows that the district court considered Torres-Maldonado’s

mitigating evidence, including his assertions that he left his home country of

        3
         Briefly stated, a district court must consider the nature and circumstances of the offense,
the history and characteristics of the defendant, the need for the sentence to provide adequate
deterrence, respect for the law, and protection of the public, the defendant’s medical and
educational needs, the advisory guideline range, the Sentencing Commission’s policy statements,
and the need to avoid unwarranted sentencing disparities and provide restitution. See 18 U.S.C.
§ 3553(a)(1)-(7).

                                                 4
Honduras because he feared for his life and that he suffers from posttraumatic

stress disorder, depression, and drug addiction. The court found these arguments

unpersuasive, however, in the light of Torres-Maldonado’s extensive criminal

history. After considering Torres-Maldonado’s arguments, the court expressly

stated that it considered the advisory sentencing guidelines and the other section

3553(a) factors in determining Torres-Maldonado’s sentence. This explanation

was sufficient to satisfy the court’s procedural requirements. See Talley, 431 F.3d

at 786 (explaining that acknowledgment by the district court that it had considered

the parties’ arguments and the section 3553(a) factors is sufficient rationale). In

addition, although the court was not required to discuss each of the section

3553(a) factors individually, it specifically discussed Torres-Maldonado’s

criminal history, which was relevant to his history and characteristics, and the

need to promote respect for the law, afford adequate deterrence, and protect the

public from further crimes. As a result, we conclude that Torres-Maldonado’s

sentence procedurally is reasonable.

      Torres-Maldonado also argues that his sentence substantively is

unreasonable because the court failed to consider properly the section 3553(a)

factors and placed disproportionate weight on his criminal history. The weight to

be given a particular section 3553(a) factor is left to the sound discretion of the

                                          5
district court. United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).

We will not reverse unless we are “left with the 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. Pugh, 515 F.3d 1179, 1191

(11th Cir. 2008).

      We are not convinced that the district court committed a clear error of

judgment in weighing the relevant statutory factors. Although Torres-Maldonado

presented mitigating evidence about his personal history and characteristics, it was

within the district court’s discretion to weigh this evidence against other factors,

such as his criminal history. While the district court’s explanation placed

particular stress on Torres-Maldonado’s criminal history, that history -- as

described above -- was relevant to several of the section 3553(a) factors. Thus,

the court did not “focus single-mindedly” on one section 3553(a) factor to the

detriment of the others. See United States v. Crisp, 454 F.3d 1285, 1292 (11th

Cir. 2006) (concluding that a sentence was unreasonable when the district court

“focused single-mindedly on the goal of restitution to the detriment of all of the

other sentencing factors”). Moreover, because the court imposed an upward

departure under section 4A1.3, it was required to specify its reasons for

                                          6
concluding that the criminal history category was insufficient. Thus, its focus on

Torres-Maldonado’s criminal history was not only within its discretion, but

mandatory.

      AFFIRMED.




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