            Case: 13-10395   Date Filed: 08/02/2013   Page: 1 of 7


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10395
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cr-20604-KMM-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

LEONARD DARRAL WELSH,
a.k.a. Leonardo Martinez,
a.k.a. DeCastro Enrique,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 2, 2013)

Before CARNES, Chief Judge, BARKETT and FAY, Circuit Judges.

PER CURIAM:
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      Leonard Welsh appeals his sentence of 27 months’ imprisonment, imposed

at the low end of the applicable guideline range of 27 to 33 months’ imprisonment,

after he pled guilty to illegal reentry after deportation, in violation of 8 U.S.C.

§ 1326(a), (b)(2). For the reasons set forth below, we affirm Welsh’s sentence.

      On appeal, Welsh argues that his sentence was substantively unreasonable

because the district court failed to afford significant weight to the mitigating

factors in his case, specifically, his past military service, his rehabilitation after

returning to the United States, and his community service. He further argues that,

based on the mitigating factors in his case, his case fell outside the “heartland of

the guidelines,” such that the court should have imposed a sentence below the

applicable guideline range. He contends that he was entitled to a downward

departure or variance based on his cultural assimilation to the United States when

he was a child, pursuant to U.S.S.G. § 2L1.2, comment. (n.8). Welsh also asserts

that his applicable guideline range was substantially enhanced due to his criminal

history, pursuant to § 2L1.2(b). According to Welsh, the district court applied the

Guidelines in a mandatory fashion when it determined that a downward variance

was not warranted on the basis that his criminal history outweighed the mitigating

factors present in his case, as all defendants subject to an enhancement under

§ 2L1.2(b) had criminal histories. Welsh argues that, by “rigidly adhering to the

guidelines in the face of substantial mitigating evidence,” the district court


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imposed a sentence that was greater than necessary to achieve the statutory

concerns set forth in 18 U.S.C. § 3553(a).

      We review the reasonableness of a sentence under a deferential abuse of

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

586, 597, 169 L.Ed.2d 445 (2007). A district court’s sentence need not be the most

appropriate one, but rather need only be a reasonable one. United States v. Irey,

612 F.3d 1160, 1191 (11th Cir. 2010) (en banc). We may set aside a sentence only

if we determine, after giving a full measure of deference to the sentencing judge,

that the sentence imposed truly is unreasonable. Id. The party challenging the

sentence has the burden of establishing that the sentence was unreasonable based

on the record and the factors set forth in § 3553(a). United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). Further, we ordinarily expect a sentence imposed

within the applicable guideline range to be reasonable. Id.

      In reviewing the reasonableness of a sentence, we first consider whether the

district court committed a procedural error, such as treating the Guidelines as

mandatory or failing to consider the § 3553(a) factors. Gall, 552 U.S. at 51, 128

S.Ct. at 597. After we have determined that a sentence is procedurally sound, we

review a sentence’s substantive reasonableness by examining the totality of the

circumstances, which includes an inquiry into whether the § 3553(a) factors

support the sentence in question. United States v. Gonzales, 550 F.3d 1319, 1323-


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24 (11th Cir. 2008). The district court must impose a sentence sufficient, but not

greater than necessary, to comply with the purposes listed in § 3553(a)(2),

including the need to reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense, deter criminal conduct, and protect

the public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a).

In imposing a particular sentence, the court must also consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.

§ 3553(a)(1), (3)-(7). We do not substitute our own judgment for that of the

district court in weighing the relevant sentencing factors absent a clear error of

judgment. See United States v. Early, 686 F.3d 1219, 1223 (11th Cir. 2012).

Further, a district court is not required to articulate its consideration of each

individual § 3553(a) factor. United States v. Ghertler, 605 F.3d 1256, 1262 (11th

Cir. 2010).

      A district court may grant a downward departure on the basis of a

defendant’s cultural assimilation under certain circumstances. See U.S.S.G.

§ 2L1.2, comment. (n.8). Additionally, a district court may depart from the

applicable guideline range, pursuant to U.S.S.G. § 5K2.0, if there exists a


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mitigating circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the Guidelines.

U.S.S.G. § 5K2.0(a)(1); see United States v. Gibson, 434 F.3d 1234, 1253 (11th

Cir. 2006). However, unless the district court incorrectly believed that it lacked

the authority to grant a downward departure, we have no jurisdiction to review the

district court’s decision declining to downwardly depart. See United States v.

Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006). Where nothing in the record

indicates otherwise, we assume that the district court understood that it had the

authority to depart downward. Id.

      Here, Welsh appears to argue that the district court should have departed

downward based on the mitigating circumstances in his case, pursuant to § 5K2.0,

and he argues that the court should have departed downward based on his cultural

assimilation, pursuant to § 2L1.2, comment. (n.8). We lack jurisdiction to review

the district court’s decision not to downwardly depart because there is nothing in

the record to suggest that the court was ignorant of its authority to grant a

downward departure, pursuant to those guideline provisions. See id.

      Further, the district court did not treat the Guidelines as mandatory, such that

Welsh’s sentence is procedurally unreasonable. Before determining that a sentence

within the applicable guideline range was warranted, the district court properly

considered the § 3553(a) factors, Welsh’s guideline range, which the court


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specifically acknowledged was advisory, and the parties’ statements concerning

whether a variance was warranted. Thus, no procedural error occurred on this

basis. Next, Welsh’s sentence of 27 months’ imprisonment, which was imposed at

the low end of the applicable guideline range of 27 to 33 months’ imprisonment, is

substantively reasonable. As Welsh’s sentence is within the applicable guideline

range, we expect this sentence to be reasonable. See Talley, 431 F.3d at 788. The

record demonstrates that the district court considered the § 3553(a) factors in

imposing his sentence, and there is nothing in the record demonstrating that the

total sentence is unreasonable based on those factors. The district court

specifically stated that Welsh’s military service was “deserving of special

consideration” and stated that it considered the parties’ statements, which indicates

that it considered Welsh’s argument for a downward variance based on his post-

offense rehabilitation, community service, and cultural assimilation, as well as the

government’s argument that, in light of Welsh’s criminal history, a guideline

sentence was appropriate. The court determined that an appropriate sentence was

at the low end of the guideline range. We do not substitute our own judgment for

that of the district court in weighing the relevant sentencing factors absent a clear

error of judgment, which Welsh has not shown here. See Early, 686 F.3d at 1223.

In light of Welsh’s substantial criminal history, he has not shown that a sentence

imposed below his applicable guideline range was warranted. Accordingly, Welsh


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has not shown that the district court’s decision to impose a sentence of 27 months’

imprisonment was unreasonable. For the foregoing reasons, we affirm Welsh’s

sentence.

      AFFIRMED.




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