                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-11226                ELEVENTH CIRCUIT
                         Non-Argument Calendar            FEBRUARY 2, 2011
                       ________________________               JOHN LEY
                                                               CLERK
                D.C. Docket No. 8:09-cr-00520-SDM-EAJ-1

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

OSCAR ALBERTO GALVEZ-ZUNIGA,

                                                     Defendant-Appellant.

                      ________________________

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

                            (February 2, 2011)

Before EDMONDSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Oscar Alberto Galvez-Zuniga appeals his 24-month sentence for illegal

reentry into the United States after having previously been convicted of a felony

offense, in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues that the district

court plainly erred by failing to adequately explain the reasons for its sentence,

and that it abused its discretion in applying a 50% upward variance from his

guideline sentencing range. Upon review, we affirm his sentence.

                                          I.

      In October 2009, the Hillsborough County, Florida, Sheriff’s Office notified

Immigration and Customs Enforcement (“ICE”) that an individual identified as

“Oscar Galvez” was believed to be a previously removed criminal alien. ICE

agents confirmed that the man was Galvez-Zuniga, that he had previously been

deported to Honduras following a felony conviction for unauthorized possession

of a fraudulent identification card, and that he had reentered the United States

without permission. Accordingly, they arrested him. At the time of his arrest,

Galvez-Zuniga was in possession of an employee identification card in the name

of “Oscar Alberto” and a Louisiana driver’s license in the name of “Oscar Alberto

Galvez.” His Florida driver’s license, also in the name of “Oscar Alberto Galvez,”

had expired in July 2008. He confirmed that he was Galvez-Zuniga and that he

had reentered the United States without permission.

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      Galvez-Zuniga had a Sentencing Guidelines offense level of 10 and was in

criminal history category III, for a guideline range of 10-16 months’

imprisonment. In addition to the fraudulent-identification felony, he had three

prior convictions, resulting from guilty or nolo contendere pleas, that did not

contribute to his criminal-history score: (1) driving without a license, (2) driving

without a valid license, and (3) driving with a license that had been expired for

less than four months.

      At sentencing, Galvez-Zuniga noted that the only offenses in his criminal

record were driving violations. He requested a low-end guideline sentence of ten

months. He argued that his criminal background did not include any narcotics,

pornography, burglaries, theft, or other serious allegations, and the most serious

offense in his background was the conviction for possessing a fraudulent

identification card. He had two sons in Honduras, and upon his release from

prison, he would stay home with his sons and find work in Honduras. He

expressed remorse and added that he had entered his plea early in the process, as

there was never any question that he would contest the charge. He apologized for

having broken the rules by returning to the United States. He asserted that he had

come here looking for work, but he promised that he would never again find

himself in this situation, and he asked for forgiveness.

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      The government stated that Galvez-Zuniga had been caught four times

without a valid driver’s license, which indicated a lack of responsibility on his part

and meant that he would be uninsured if he were to hit another driver. The

government further noted that he had already served ten months’ imprisonment for

the felony fraudulent-identification offense, but he was in possession of an expired

license when he was apprehended this time. The government stated that a ten-

month sentence would not be appropriate and that Galvez-Zuniga needed to be

shown the error of his ways.

      The court sentenced Galvez-Zuniga to 24 months’ imprisonment. It stated

that it had considered the 18 U.S.C. § 3553(a) factors and had concluded that the

sentence was not greater than necessary to comply with the statutory purposes of

sentencing. As to the nature and circumstances of the offense and the history and

characteristics of the offender, the court noted that Galvez-Zuniga had maintained

unlawful residence for a protracted period of time and had already been sentenced

to a year in prison without much effect. It felt that deterrence was the principal

concern in this case, particularly as Galvez-Zuniga had been undeterred by his

previous arrests and imprisonment, and there was a need for some material

escalation of penalties for his continued presence. The court also considered that

this offense was subject to a statutory maximum sentence of ten years’

                                          4
imprisonment, and a protracted presence in the United States resulting in repeated

arrests would warrant a sentence closer to the maximum. The court was satisfied

that no less than a 24-month sentence was necessary to make an impression and

serve as an adequate deterrent.

      Galvez-Zuniga objected to the reasonableness of the sentence, stating in

particular that he understood the court’s concern about the prior state sentence, but

that it already had been factored into the guideline calculation. He felt that a 16-

month sentence would have been more than reasonable. The court reiterated that

the proximity, length, and ineffectiveness of the state sentence led it to think that

Galvez-Zuniga would not be deterred by a sentence within the guideline range.

                                          II.

      We review a sentence for reasonableness in a two-step process. First, we

must ensure that the district court did not commit any significant procedural error,

such as failing to consider the § 3553(a) factors or failing to explain the sentence

adequately, including an explanation for any variance from the guideline range.

Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445

(2007). Where, as here, the defendant fails to object in the district court to a

purported procedural error, we review for plain error. See United States v.

Massey, 443 F.3d 814, 818 (11th Cir. 2006). Thus, Galvez-Zuniga must show

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(1) an error that (2) is plain, (3) affects substantial rights, and (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings. United States

v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).

      Second, we review the substantive reasonableness of the sentence under an

abuse-of-discretion standard. United States v. Irey, 612 F.3d 1160, 1188 (11th

Cir. 2010) (en banc). We will reverse a sentence under that standard only if the

district court has made a clear error of judgment. Id. at 1189. When conducting

this review, we take into account the totality of the facts and circumstances,

including the extent of any variance from the guideline range. Gall, 552 U.S. at

51, 128 S.Ct. at 597. We will not reverse merely if we believe that a different

sentence might have been more appropriate. Irey, 612 F.3d at 1191. The

appellant bears the burden of establishing that the sentence is unreasonable.

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

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

621 (2005), sentencing is a two-step process that requires the district court first to

“consult the Guidelines and correctly calculate the range provided by the

Guidelines,” and then to consider the factors in 18 U.S.C. § 3553(a) and determine

a reasonable sentence. Talley, 431 F.3d at 786. Those factors include: (1) the

nature and circumstances of the offense and the history and characteristics of the

                                            6
defendant; (2) the need to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense; (3) the need for

deterrence; (4) the need to protect the public; (5) the need to provide the defendant

with training or medical care; (6) the kinds of sentences available; (7) the

sentencing guideline range; (8) pertinent policy statements of the Sentencing

Commission; (9) the need to avoid unwarranted sentencing disparities; and

(10) the need to provide restitution to the victims. Id. (discussing § 3553(a)). The

sentence must be no greater than necessary to punish, deter, protect the public, and

provide the training and care outlined in the statute. 18 U.S.C. § 3553(a).

      “The court, at the time of sentencing, shall state in open court the reasons

for its imposition of the particular sentence.” Id. § 3553(c). Not every case

requires a full opinion or a response to every argument. Rita v. United States, 551

U.S. 338, 356-57, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). Rather, “[t]he

sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

legal decisionmaking authority.” Id. at 356, 127 S.Ct. at 2468. When the sentence

is within the guideline range and neither party has contested the range under

§ 3553(a), “the judge normally need say no more.” Id. at 357, 127 S.Ct. at 2468.

“Where the defendant or prosecutor presents nonfrivolous reasons for imposing a

                                          7
different sentence . . . the judge will normally go further and explain why he has

rejected those arguments. Sometimes the circumstances will call for a brief

explanation; sometimes they will call for a lengthier explanation.” Id.

      The district court commits a clear error of judgment if it weighs the

§ 3553(a) factors unreasonably, thus arriving at a sentence that does not achieve

the statutory purposes of sentencing. Irey, 612 F.3d at 1189. The court may also

abuse its discretion by failing to consider relevant factors that were due significant

weight, or by giving significant weight to an improper or irrelevant factor. Id.

Nonetheless, a district court does not abuse its discretion when it merely attaches

“great weight” to a single, permissible factor or set of factors. Gall, 552 U.S. at

56-59, 128 S.Ct. at 600-02.

      Here, the district court adopted the undisputed facts and guideline range set

forth in the presentencing investigation report, stated that it had considered the

§ 3553(a) factors, and discussed two of them—Galvez-Zuniga’s criminal

background and the need for deterrence—in detail. It explained that it believed a

sentence of at least 24 months was necessary to make an impression on Galvez-

Zuniga and to deter him from future law-breaking, and it noted in particular that

his multiple previous arrests had not been an effective deterrent because they had

resulted in little to no jail time. When Galvez-Zuniga objected to the substantive

                                          8
reasonableness of the sentence, the court acknowledged the difficulty of tailoring a

sentence to an individual defendant, but it explained its reasoning again and

reaffirmed its decision. Taken as a whole, the record shows that the court

“considered the parties’ arguments and ha[d] a reasoned basis for exercising [its]

own legal decisionmaking authority.” Rita, 551 U.S. at 356, 127 S.Ct. at 2468.

The district court’s statement of its reasons was not plainly erroneous for purposes

of § 3553(c).

      As to substantive reasonableness, the court heard argument from the parties

about the relative seriousness of Galvez-Zuniga’s prior offenses, and it

acknowledged that he had come to the United States in order to earn money to

support his family, but it expressed concern that he had been undeterred by his

previous arrests and imprisonment. The court noted that there had not been a

material escalation in penalties for his continued presence and infractions. The

court relied not only upon the protracted length of his presence in the United

States and the number of his prior infractions, but also upon the fact that he had

committed the infractions close in time to each other. The court found that

Galvez-Zuniga’s 12-month fraudulent-identification sentence, of which he had

served only 10 months, had not served as a deterrent, and it concluded that a

sentence of 10-16 months for this offense would not do so, either. Galvez-Zuniga

                                          9
has not proved that the district court made a clear error of judgment when it placed

additional weight on the frequency of his recidivism and the lack of deterrent

effect of his previous, more lenient sentences. See Gall, 552 U.S. at 56-59, 128

S.Ct. at 600-02; Irey, 612 F.3d at 1189. The court did not abuse its discretion by

applying a 50% upward variance. See Irey, 612 F.3d at 1188.

      For the foregoing reasons, we affirm Galvez-Zuniga’s sentence.

      AFFIRMED.




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