           Case: 12-14941   Date Filed: 07/05/2013   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14941
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:12-cr-00159-RAL-EAJ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

ADAM HERNANDEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                              (July 5, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
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      Adam Hernandez appeals his 60-month sentence, imposed after he pled

guilty to attempting to possess with intent to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii)(II), and 846. On

appeal, he argues that his sentence was both procedurally and substantively

unreasonable.

      We normally review all sentences for reasonableness under the deferential

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007). The government correctly notes that Hernandez failed to object

to the reasonableness of his sentence before the district court. Where a party fails

to object to an error or ruling, we normally review only for plain error. See United

States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 1776 (1993).

                            I. Procedural Reasonableness

      First, Hernandez argues that, despite his presentation of 18 U.S.C. § 3553(a)

factors in mitigation, the district court failed to address or consider those factors

during sentencing. He contends that the court’s bare assertion that it had

considered the § 3553(a) factors was insufficient to demonstrate that the factors

had been considered in his specific case.

      A sentence may be procedurally unreasonable if the district court failed to

accurately calculate the guideline range, treated the Guidelines as mandatory,

failed to consider the § 3553(a) factors, selected a sentence based on clearly


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erroneous facts, or failed to adequately explain the reasons for the sentence. Gall,

552 U.S. at 51, 128 S. Ct. at 597. However, the district court need not discuss or

explicitly state on the record that it has considered each § 3553(a) factor. United

States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Instead, an acknowledgment

by the district court that it considered the defendant’s arguments, the circumstances

of the offense, and the § 3553(a) factors suffices. Id. at 1329-30. Where a case is

conceptually simple, and the record makes clear that the sentencing judge

considered the evidence and the arguments, the judge is not required to further

elaborate on his sentencing decision. See Rita v. United States, 551 U.S. 338,

358-59, 127 S. Ct. 2456, 2469 (2007) (holding that the sentencing judge’s brief

explanation was legally sufficient because the context and record made it clear

that, in imposing sentence, the judge listened to each argument and considered

supporting evidence).

      Here, Hernandez fails to demonstrate that his sentence is procedurally

unreasonable. Although he argues that the district court did not consider the

§ 3553(a) factors as they relate to his case, the court did consider Hernandez’s

arguments, the circumstances of the offense, and the § 3553(a) factors. See Scott,

426 F.3d at 1329-30. The court acknowledged that it had specifically considered

the arguments in Hernandez’s sentencing memorandum, commented that it

considered Hernandez’s case to be very serious due to the large amount of cocaine


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involved, found that the crime was not impulsive but instead well-planned, and

explicitly stated that it had considered the § 3553(a) factors. The district court was

not required to discuss each factor. Id. at 1329. Because many of the § 3553(a)

factors were concededly inapplicable, the case was conceptually simple, and the

record made clear that the sentencing judge considered the evidence and the

defendant’s arguments. See Rita, 551 U.S. at 358-59, 127 S. Ct. at 2469.

Accordingly, Hernandez’s sentence was not procedurally unreasonable.

                           II. Substantive Reasonableness

      Hernandez also contends that his sentence was substantively unreasonable

because the district court solely focused on the need to punish and impermissibly

failed to consider the § 3553(a) factors brought forth in mitigation. He argues that

the court exclusively focused on the specifics of the offense—the large quantity of

cocaine—which rendered his sentence substantively unreasonable.

      After we determine that a sentence is procedurally reasonable, we examine

whether the sentence imposed is substantively reasonable in light of the totality of

the circumstances. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008).

The party challenging the sentence bears 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).




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

“sufficient, but not greater than necessary,” to comply with the purposes of

sentencing. 18 U.S.C. § 3553(a). The purposes of sentencing include the need for

the sentence to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, deter criminal conduct, protect the public from future

crimes of the defendant, and provide needed medical care or other correctional

treatment in the most effective manner. Id. § 3553(a)(2). The sentencing court

must also consider the nature and circumstances of the offense, the history and

characteristics of the defendant, the kinds of sentences available, and the applicable

guideline range. Id. § 3553(a)(1), (3)-(4).

      The weight to be accorded to any given § 3553(a) factor is a matter left to

the district court’s discretion, and we will not substitute our judgment in weighing

the relevant factors. United States v. Langston, 590 F.3d 1226, 1237 (11th Cir.

2009). The district court’s attachment of great weight to a single factor is not

necessarily reversible error, although a district court’s unjustified reliance upon

any single § 3553(a) factor may be a “symptom” of an unreasonable sentence.

United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). Although we do

not automatically presume the reasonableness of a sentence falling within the

guideline range, we ordinarily expect such a sentence to be reasonable. United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence well below the


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statutory maximum is another indicator of reasonableness. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). We vacate a sentence only if

“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. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation

omitted).

      Hernandez has not met his burden of showing that his 60-month guideline

sentence was substantively unreasonable in light of the record and the § 3553(a)

factors. See Talley, 431 F.3d at 788. There is nothing in the record to indicate that

the court unjustifiably relied upon any single § 3553(a) factor so as to impose an

unreasonable sentence. See Williams, 526 F.3d at 1322. To the extent that

Hernandez asks us to reweigh the § 3553(a) factors, we will not do so. See

Langston, 590 F.3d at 1237. Hernandez’s 60-month sentence fell near the bottom

of his 57 to 71-month guideline range, and we ordinarily expect such a sentence to

be reasonable. See Hunt, 526 F.3d at 746. Finally, the fact that his sentence fell

far below the 40-year statutory maximum is another indicator of reasonableness.

21 U.S.C. § 841(b)(1)(B)(ii)(II); see also Gonzalez, 550 F.3d at 1324. Thus, we

cannot say that the district court imposed a sentence outside the range of




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reasonable sentences in light of the totality of the circumstances. See Irey, 612

F.3d at 1190.

                                   III. Conclusion

      In conclusion, Hernandez’s sentence was both procedurally and

substantively reasonable, and we affirm.

      AFFIRMED.




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