                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            Nov. 24, 2009
                             No. 09-12967                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 08-00383-CR-KD


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

FRANCISCO LUGO-VALDEZ,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________

                           (November 24, 2009)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:
      Defendant-Appellant Francisco Lugo-Valdez appeals his 12-month sentence

imposed for illegal re-entry into the United States. No reversible error has been

shown; we affirm.

      Defendant contends that the district court erred in the calculation of his

guideline sentence when it applied a four-level enhancement under U.S.S.G. §

2L1.2(b)(1)(E) based on three or more earlier convictions for misdemeanor drug-

trafficking offenses. With the enhancement, the guidelines range was 10 to 16

months. According to Defendant, some of the state-court drug convictions used to

support the enhancement were obtained without the assistance of counsel or an

interpreter. The district court overruled Defendant’s objections to the application

of the four-level section 2L1.2(b)(1)(E) enhancement; a within guidelines range

sentence of 12 months was imposed.

      At sentencing, the district court stated:

             [I]f I have calculated the sentencing guidelines
             incorrectly by applying the misdemeanor offense when it
             should not be applied, the Court would still find that a
             12-month sentence is a reasonable sentence considering
             all of the factors I just set forth [defendant’s repeated
             violations of the law and repeated illegal reentries], his
             likelihood of recidivism and apparent unwillingness to
             abide by the law.

      We review the district court’s guidelines interpretation de novo; its factual

findings are reviewed for clear error. United States v. Jordi, 418 F.3d 1212, 1214

                                           2
(11th Cir. 2005). Where -- as is the case here -- the district court states that it

would have imposed the same sentence irrespective of the disputed guidelines

calculation, we need not resolve the guideline issue if the sentence imposed is

substantively reasonable. And “[i]n determining whether it is reasonable we must

assume that there was a guidelines error -- that the guidelines issue should have

been decided in the way the defendant argued and the advisory range reduced

accordingly -- and then ask whether the final sentence resulting from consideration

of the § 3553(a) factors would still be reasonable.” United States v. Keene, 470

F.3d 1347, 1349 (11th Cir. 2006).

      The district court has “considerable discretion” in deciding whether and the

extent to which a variance is appropriate under the section 3553(a) factors; and we

must accord the district court’s decision “due deference.” United States v. Shaw,

560 F.3d 1230, 1238 (11th Cir.), cert. denied, 129 S.Ct. 2847 (2009). We may

vacate a sentence on the basis of a variance 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.” Id. (citation omitted).

      Had the district court decided the enhancement issue in Defendant’s favor,

the advisory guidelines range would have been two to eight months’


                                            3
imprisonment.1 The 12-month sentence imposed represented a four-month upward

variance from the high end of the guidelines range and was well below the

statutory maximum of ten years. See United States v. Winingear, 422 F.3d 1241,

1246 (11th Cir. 2005) (considering statutory maximum in the course of

reasonableness assessment). The district court supported the variance by reference

to Defendant’s recidivism and apparent unwillingness to abide by the law. The

justifications cited by the district court amply support the four-month upward

variance imposed.2

       If there was a misapplication of the section 2L1.2(b)(1)(E) enhancement,

“the error did not affect the district court’s selection of the sentence imposed,”

Williams v. United States, 112 S.Ct. 1112, 1121 (1992); the error was harmless.

See Fed.R.Crim.P. 52(a).

       AFFIRMED.




       1
        Even after factoring out all four of the offenses that Defendant claims should not be
considered in calculating his sentence (three misdemeanor drug convictions and one trespass
conviction), Defendant’s criminal history category was III -- not II as Defendant mistakenly
calculates.
       2
         Undisputed prior convictions and orders of removal from the United States on at least
three occasions before the instant offense, support the district court’s conclusions about likely
recidivism and apparent unwillingness to abide by the law. See United States v. Beckles, 565
F.3d 832, 844 (11th Cir.) (district court may rely on undisputed statements found in the PSI),
cert. denied (U.S. Oct. 5, 2009) (No.09-5482).

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