                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          NOVEMBER 30, 2009
                             No. 09-11516                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 08-00329-CR-ODE-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MELVIN DOUGLAS ZELAYA,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                           (November 30, 2009)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Melvin Douglas Zelaya appeals the sentence he received, 48 months’

imprisonment, after pleading guilty to illegally re-entering the United States after

having previously been deported, in violation of 8 U.S.C. § 1326(a) and (b)(2). He

raises one issue: whether the sentence is substantively unreasonable because his

criminal history was overstated, a 16-level increase of his offense level for a prior

conviction lacked a reasonable basis, and the sentence is greater than necessary to

achieve the sentencing objectives of 18 U.S.C. § 3553(a).

      We review the final sentence imposed by a district court for reasonableness.

United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621

(2005). First, we must ensure that the district court committed no significant

procedural error, such as improperly calculating the guidelines range or treating the

Guidelines as mandatory. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597,

169 L.Ed.2d 445 (2007). After we determine that the district court’s sentencing

decision is procedurally sound, we review the substantive reasonableness of the

sentence for abuse of discretion. Id.

      This reasonableness review is “deferential,” requiring that we determine

“whether the sentence imposed by the district court fails to achieve the purposes of

sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). There is a “range of reasonable sentences from which the



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district court may choose,” and the burden is on the defendant to show that the

sentence was unreasonable in light of the record and the § 3553(a) factors. Id.

While a sentence within the guideline range is not per se reasonable, we ordinarily

expect such a sentence to be reasonable. Id.

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

to the sound discretion of the district court, and we will not substitute our judgment

in weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832

(11th Cir. 2007). We will remand for resentencing only if 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.” Tally,

431 F.3d at 788; United States v. Pugh, 515 F.3d 1179, 1191-92 (11th Cir. 2008)

(citation and internal quotation marks omitted).

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

sufficient, but not greater than necessary, to (1) reflect the seriousness of the

offense, (2) promote respect for the law, (3) provide just punishment for the

offense, (4) deter criminal conduct, (5) protect the public from future crimes of the

defendant, and (6) provide the defendant with needed educational or vocational

training or medical care. 18 U.S.C. § 3553(a)(2). One factor the court must



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consider in imposing a sentence is the guidelines range, but courts, in their

discretion, may vary from guidelines ranges based solely on policy consideration,

including disagreements with the Guidelines. 18 U.S.C. § 3553(a)(4); Kimbrough

v. United States, 552 U.S. 85, ___, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007).

      In this case, the district court correctly calculated Zelaya’s advisory

Guidelines range as 57-71 months’ imprisonment, and Zelaya makes no claim of

error in those calculations. The district court then took Zelaya’s multiple

mitigating arguments into account in sentencing him below that advisory

Guidelines sentence range. Zelaya has failed to show that his below-range

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

factors. His 48-month sentence is, accordingly,

      AFFIRMED.




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