                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JUNE 15, 2009
                               No. 08-13833                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 07-10047-CR-KMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

MANUEL FRIERE,

                                                          Defendant-Appellant.


                         ________________________

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

                              (June 15, 2009)

Before MARCUS, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Manuel Friere appeals his sentence to 60 months of imprisonment for the
forcible assault of a federal law enforcement officer and failure to heave to a

federal law enforcement vessel. 18 U.S.C. §§ 111(a)(1), 2237(a)(1). Friere argues

that his sentence above the guideline range is unreasonable. We affirm.

                                 I. BACKGROUND

      Friere and two cohorts were spotted by the Coast Guard traveling in a go-

fast boat at night without navigational lights. The Coast Guard employed various

means to stop the boat and ignited illumination flares, ordered the occupants in

English and Spanish to stop, and launched an inflatable vessel with a crew of law

enforcement officers. During the pursuit, Yulier Garcia-Martinez and Abdulay

Perez refueled the boat and Perez laid across the engines to prevent the officers

from disabling the boat with gunfire. When the Coast Guard vessel was parallel to

the go-fast boat, Friere left the controls and threw a fifteen-gallon fuel barrel that

struck Petty Officer Herring in the head and splashed gasoline in the eyes of Petty

Officer Collins.

      After a two-hour chase, the engine of the go-fast boat failed and the Coast

Guard boarded the go-fast boat and arrested Friere and his cohorts. The officers

searched the go-fast boat and discovered 115 gallons of gasoline, extra food,

satellite and cellular telephones, a GPS unit with a track line to Cuba, a radio, and

extra life jackets. A check of the vessel registration revealed that the go-fast boat



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had been stolen several days earlier. Friere and his cohorts admitted that they

intended to transport family members from Cuba to Florida, they knew they were

being chased by the Coast Guard, and they refused to stop because they wanted to

reach Cuba.

      Friere was charged in a four-count indictment for forcibly assaulting Coast

Guard officers, 18 U.S.C. § 111(a)(1); conspiring to induce aliens to illegally enter

the United States, 8 U.S.C. § 1324(a)(1)(A)(v)(I); failing to obey the order by law

enforcement to heave to, 18 U.S.C. § 2237(a)(1); and forcibly resisting the

boarding by law enforcement and resisting arrest, id. § 2237(a)(2)(A). A jury

found Friere guilty of assault and failing to heave to, but acquitted him of the

conspiracy and forcible resistance charges.

      The presentence investigation report listed Friere’s base offense level at 14,

United States Sentencing Guideline §§ 2A2.2(a), 2A2.4(c)(1), and increased it by

four levels for use of a dangerous weapon, id. § 2A2.2(b)(2)(B). With a criminal

history category of I, the report provided a sentencing range between 27 and 33

months of imprisonment. The statutory term of imprisonment for the assault crime

was between zero and eight years, 18 U.S.C. § 111(a)(1), and the statutory term for

failing to heave to was between zero and five years, id. § 2237(a)(1).

      At the sentencing hearing, Friere agreed with the court that the report



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“correct[ly] calculat[ed] . . . the guidelines” range. Friere told the district court that

he “went to trial . . . because [he was] innocent” and asserted that Garcia-Martinez

had thrown the fuel barrel into the water. Friere complained that he was mistreated

by law enforcement because he was not questioned about his crimes, he was

mistakenly released and then rearrested on charges that were “never mentioned” to

him, and he was not served with “any legal documents concerning [his] case.”

Friere remarked that he could not “say whether” the district court was “good or

bad” and asked the court “to see all those errors that [had] been committed in [his]

case.” Friere’s mother also complained that “little professional ethics . . . existed

in [Friere’s] case.” Friere requested a sentence within or below the guideline

range.

         The district court discussed the statutory factors and remarked that Friere

had been charged with possessing 92 marijuana plants four months after he entered

the United States and, two months later, committed the present offense. The

district court mentioned that Friere had admitted that he intended to smuggle

family members and others into the United States and that Friere was one of eight

individuals on the docket who had “engaged in one form or another with illegal

smuggling ventures.” The court found that Friere’s denial of guilt and the

circumstances of the offense “evidence[d] . . . a lack of respect for the law” that



                                             4
required punishment to “insure adequate deterrence for similar conduct by [Friere]

as well as for other defendants.” The district court sentenced Friere to concurrent

terms of sixty months of imprisonment followed by three years of supervised

release. Friere objected “essentially to the enhancement.”

                           II. STANDARD OF REVIEW

      We review the reasonableness of a criminal sentence for an abuse of

discretion. Gall v. United States, 128 S. Ct. 586, 594, 596–97 (2007). “[T]he party

who challenges the sentence bears the burden of establishing that the sentence is

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

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

                                  III. DISCUSSION

      Friere argues that his sentence to sixty months of imprisonment is

unreasonable because it was longer than necessary to fulfill the purposes of

sentencing. Although the Sentencing Guidelines serve as a “starting point and the

initial benchmark,” the district court has the authority, based on its “individualized

assessment” of the facts, to weigh the factors listed in section 3553(a) and fashion

a sentence outside the guidelines. Gall, 128 S. Ct. at 596–97. As long as the

district court provides “justification . . . sufficiently compelling to support the

degree of the variance” from the guidelines range, id. at 597, and the term imposed



                                            5
adequately achieves sentencing objectives, see United States v. Pugh, 515 F.3d

1179 (11th Cir. 2008), Gall requires that we affirm.

      The district court did not abuse its discretion by imposing a sentence above

guideline range. The district court considered the section 3553(a) factors,

including Friere’s criminal history in the light of his brief time in the United States

and that Friere intended to smuggle undocumented aliens into the country, and

explained that a sentence of sixty months of imprisonment was necessary to

address Friere’s lack of remorse and contempt for the law and deter future criminal

conduct. 18 U.S.C. § 3553(a); Gall, 128 S. Ct. at 597. Friere’s sentence is

reasonable.

                                 IV. CONCLUSION

      Friere’s sentence is AFFIRMED.




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