                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT         FILED
                                ________________________U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-13238                 JULY 11, 2011
                                   Non-Argument Calendar             JOHN LEY
                                 ________________________              CLERK


                            D.C. Docket No. 1:07-cr-20955-JEM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,


                                            versus


LUIS VASQUEZ-FROMETA,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

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

                                        (July 11, 2011)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Luis Vasquez-Frometa appeals his 60-month sentence for importing 100

grams or more of heroin, in violation of 21 U.S.C. §§ 952(a) and 960(b)(2). In

November 2007, Vasquez-Frometa arrived in the United States on a flight from

the Dominican Republic and was arrested after he was found to be carrying pellets

containing heroin inside his body. He argues that his sentence is procedurally

unreasonable because the district court failed to consider the 18 U.S.C. § 3553(a)

sentencing factors and improperly considered (1) the number of heroin pellets that

he was carrying inside his body and (2) the fact that he had traveled to the United

States 18 times between 2004 and November 2007. Vasquez-Frometa also argues

that his sentence is substantively unreasonable because his brother, who was

convicted of a similar offense, was sentenced to only 30 months’ imprisonment.

      We review a sentence for procedural and substantive reasonableness. Gall

v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007). If a defendant fails

to object to a sentencing error before the district court, we review for plain error.

United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009), cert. denied, 130

S.Ct. 2361 (2010). To establish plain error, a defendant must show that there was

an (1) error, (2) that is plain, and (3) that affects substantial rights. Id. We may

exercise our discretion to correct such an error if “the error seriously affects the




                                           2
fairness, integrity or public reputation of judicial proceedings.” Id. at 1239

(quotation and alteration omitted).

       A sentence is procedurally unreasonable if the sentencing court fails to

consider the factors set forth in § 3553(a) or “selects a sentence based on clearly

erroneous facts.” United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir.

2010), cert. denied 131 S. Ct. 2166 (2011). The district court need not discuss or

explicitly state on the record each § 3553(a) factor. United States v. Scott, 426

F.3d 1324, 1329 (11th Cir. 2005). An acknowledgment by the district court that it

has considered the defendant’s arguments and the § 3553(a) factors will suffice.

Id. at 1329-30.

      In considering the substantive reasonableness of a sentence, we consider the

totality of the circumstances and apply an abuse-of-discretion standard, under

which we reverse only if we find 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. Saac, 632 F.3d 1203, 1215 (11th Cir. 2011). The § 3553(a)

factors that a sentencing court must consider include “the need to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The party

                                          3
challenging the sentence “bears the burden of establishing that the sentence is

unreasonable in the light of both th[e] record and the factors in section 3553(a).”

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



      We review Vasquez-Frometa’s procedural reasonableness arguments under

the plain-error standard because, at sentencing, Vasquez-Frometa stated that he

had no objections to the district court’s factual findings or pronouncement of

sentence. Vasquez-Frometa has failed to show that the district court plainly erred

by imposing a procedurally unreasonable sentence. The record shows that the

district court considered the § 3553(a) sentencing factors and, under 18 U.S.C.

§§ 3553(a)(1)-(2) and 3661, the court was permitted to consider the number of

pellets that were found in Vasquez-Frometa’s body, as well as Vasquez-Frometa’s

prior trips from the Dominican Republic to the United States. The district court

did not rely on clearly erroneous facts because the undisputed facts in the

presentence investigation report supported the court’s finding that

Vasquez-Frometa made 18 trips to the United States between 2004 and November

2007 despite having limited financial resources. Finally, Vasquez-Frometa has

failed to show that his sentence resulted in an unwarranted sentencing disparity




                                          4
because he has not established that he was similarly situated to his brother.

Accordingly, we affirm Vasquez-Frometa’s 60-month sentence.

      AFFIRMED.1




      1
             The Government’s motion to dismiss the appeal is DENIED.

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