                    Case: 12-12635         Date Filed: 02/25/2013     Page: 1 of 5

                                                                          [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-12635
                                        Non-Argument Calendar
                                      ________________________

                          D.C. Docket No. 4:11-cr-00051-HLM-WEJ-1

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllll                                         lllllllllllllPlaintiff-Appellee,

                                                 versus

ANGEL MENDOZA-BUSTOS,

llllllllllllllllllllllllllllllllllllllll                                   Defendant-Appellant.

                                     ________________________

                              Appeal from the United States District Court
                                 for the Northern District of Georgia
                                    ________________________
                                         (February 25, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

         Angel Mendoza-Bustos appeals his 48-month sentence, imposed at the low

end of the guideline range, for re-entry of a deported alien, in violation of 8 U.S.C.
                Case: 12-12635       Date Filed: 02/25/2013      Page: 2 of 5

§ 1326(a), (b)(2).1 On appeal, Mendoza-Bustos argues that his sentence for this

conviction was substantively unreasonable because only one prior conviction had

skewed his guideline range. After careful review of the parties’ briefs and the

record, we affirm.

       We review the procedural and substantive reasonableness of a sentence

under a deferential abuse of discretion standard. Gall v. United States, 552 U.S.

38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). We review the ultimate

sentence and not each decision made during the sentencing process. United States

v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).

       Although we do not automatically presume a sentence falling within the

guideline range to be reasonable, we ordinarily expect such a sentence to be

reasonable. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). A

sentence imposed well below the statutory maximum penalty is another indicator

of a reasonable sentence. Id. “The party challenging the sentence bears the

burden to show it is unreasonable in light of the record and the § 3553(a) factors.”

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert. denied, 131 S. Ct.

674 (2010). We examine whether the sentence was substantively reasonable in


       1
               Mendoza-Bustos does not appeal the substantive reasonableness of his 6-month
revocation sentence, which the district court ordered to run consecutively with this 48-month
sentence.

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light of the totality of the circumstances. Id. A district court abuses its discretion

when it balances the § 3553(a) factors unreasonably or places unreasonable weight

on a single factor. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc), cert. denied, 131 S. Ct. 1813 (2011). We reverse only if “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. at

1190 (quotation omitted).

      Mendoza-Bustos received a 16-point enhancement under U.S.S.G. §

2L1.2(b)(1)(A)(I) for his 2004 conviction for possession with intent to distribute

heroin. This conviction also resulted in a criminal history category of III.

Mendoza-Bustos argues that the 16-point enhancement resulted in an

unreasonable sentence, particularly because this same past conduct had already

increased his criminal history points. But we have previously considered a similar

“double counting” argument and upheld the § 2L1.2 enhancement. United States

v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992). In general, double counting is

permissible if the Sentencing Commission intended the result and each guideline

section addresses conceptually separate sentencing purposes. Specifically

addressing the § 2L1.2 enhancement, we held that the Commission intended prior

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felonies to count against defendants under both the criminal history section and

§ 2L1.2 based on Application Note 5 (now Note 6), which stated that the

enhancement applies “in addition to any criminal history points.” Finally, we have

noted that the § 2L1.2 enhancement supports a distinct policy concern from the

criminal history section; the criminal history section is designed to punish likely

recidivists more severely, while § 2L1.2 enhancement is designed to deter aliens

who have been convicted of a felony from re-entering the United States. Id.

      As to the substantive reasonableness of the sentence, Mendoza-Bustos has

twice been convicted for possession of dangerous drugs. In 1998, he was arrested

for the possession for sale of cocaine, heroin, and methamphetamine. In 2003,

Mendoza-Bustos was arrested for possession with intent to distribute heroin. He

was deported after both convictions but illegally re-entered the country on at least

two occasions, including on at least one occasion when he was still on supervised

release. The district court heard testimony from Mendoza-Bustos, explicitly noted

the advisory guideline range of 46 to 57 months, and sentenced him at the low end

of the guideline range. The district court’s sentence was justified by Mendoza-

Bustos’s criminal history, the need to promote respect for the law, the need to

protect the public, and the need to deter Mendoza-Bustos and others from illegally

re-entering the United States. Additionally, the fact that Mendoza-Bustos’s 48-

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month sentence is only one-fifth of the 20-year statutory maximum sentence

further supports the reasonableness of his sentence. See Gonzalez, 550 F.3d at

1324. Accordingly, we affirm.

      AFFIRMED.




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