                                                                 [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                         FILED
                                                               U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                              No. 11-10060
                                                                    OCTOBER 3, 2011
                          Non-Argument Calendar
                                                                      JOHN LEY
                        ________________________                       CLERK

                D.C. Docket No. 6:10-cr-00223-GKS-DAB-1

UNITED STATES OF AMERICA,

                             llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
                                      versus

JOSE ARTURO GARCIA-HERNANDEZ,
a.k.a. John Sanchez,
a.k.a. Jose Arturo Garcia,
a.k.a. Antonio Murillo Jose,
a.k.a. Jose Antonio Murillo-Hernandez,

                           llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
                       ________________________

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

                              (October 3, 2011)

Before BARKETT, HULL and PRYOR, Circuit Judges.

PER CURIAM:
      Jose Arturo Garcia-Hernandez appeals his 77-month sentence for illegal

reentry after deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, he

first argues that his sentence is both procedurally and substantively unreasonable.

He contends that the sentence is procedurally unreasonable because the district

court: (1) failed to adequately consider the 18 U.S.C. § 3553 sentencing factors;

(2) failed to consider all of the arguments presented by defense counsel and to

adequately explain the sentence; (3) assumed facts not in evidence regarding a

proposed guideline departure and variance; and (4) treated the Guidelines as

mandatory. He further argues that the sentence is substantively unreasonable

because it is greater than necessary to serve the purposes of sentencing. Secondly,

he argues that the district court erred by failing to allow him to allocute prior to

sentencing. Lastly, he argues that the court erred by failing to elicit fully

articulated objections following sentencing. We affirm.

       In this case, Garcia-Hernandez’s sentence is both procedurally and

substantively reasonable. The record reflects that, although the district court did

not explicitly discuss or cite any of the § 3553(a) factors, the court’s consideration

of his arguments for a variance under the § 3553(a) factors and his request for

downward departure indicate that the court did consider the sentencing factors.

Furthermore, the court’s comments during the sentencing hearing indicate that it

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considered the need for deterrence, protecting the public from further crimes, his

history, and what would constitute just punishment. The record also demonstrates

that the court considered his arguments and adequately explained its reasons for

the sentence.

      With regard to the motion for a downward departure, the district court stated

that it saw “no reason to depart from the guidelines,” which implies that it

understood that it had the authority to depart from the guideline range. Therefore,

we have no authority to review the court’s decision to deny the downward

departure. To the extent that Garcia-Hernandez also argues that the court should

have varied from the guideline range, he has failed to show that his sentence,

which was at the very bottom of the guideline range, was unreasonable. Although

he contends that the district court’s decision not to depart or vary below the

guideline range was based on facts not in evidence, the court’s findings were not

clearly erroneous.

      The record further demonstrates that the court correctly treated the

Guidelines as advisory. Lastly, Garcia-Hernandez failed to show that his sentence

is substantively unreasonable. His 77-month sentence is within the advisory

guideline range and below the statutory maximum of 10 years’ imprisonment.




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      Next, although the district court neglected to allow Garcia-Hernandez to

allocute prior to sentencing him, after defense counsel pointed out this error, the

court specifically addressed the defendant and asked if he had anything to state to

the court. He was given an opportunity to be heard by the court before the

proceeding had ended and while he was still under the “presence and control” of

the court. The court clearly advised the defendant that his post-sentencing

allocution might make a difference, which demonstrates that the sentence still

could have been changed following his allocution. Under these circumstances, we

find no errors as to this issue.

      Finally, we find no merit to Garcia-Hernandez’s claim that the court failed

to elicit fully articulated objections following sentencing.

      Although, after sentencing Garcia-Hernandez, the district court asked only

whether there was “anything further” that defense counsel wished to state to the

court, defense counsel responded with several objections to the sentence, which

indicates that counsel understood that the court was eliciting objections, which

counsel made.

      Upon review of the record and consideration of the parties’ briefs, we find

no reversible error.

      AFFIRMED.

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