                                                                       [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                       No. 10-12870                     MARCH 30, 2011
                                                                          JOHN LEY
                                   Non-Argument Calendar                    CLERK
                                 ________________________

                          D.C. Docket No. 8:10-cr-00071-RAL-TBM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                     Plaintiff-Appellee,

                                            versus

FELIX JOSE LUGO-GUTIERREZ,
a.k.a. Jose Lugo-Gutierrez,

                                                     lllllllllllllllllllll Defendant-Appellant.

                                ________________________

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

                                       (March 30, 2011)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Felix Jose Lugo-Gutierrez appeals his 36-month sentence, imposed above

his applicable guidelines range, after he pleaded guilty to a violation of 8 U.S.C.

§ 1326(a) and (b)(1) for being an unlawful alien found in the United States after

deportation for a felony offense. On appeal, Lugo-Gutierrez argues that his

sentence was procedurally and substantively unreasonable because the court failed

to adequately explain its reasons for imposing an upward variance.

      We review a final sentence for reasonableness, applying the deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591, 169 L. Ed. 2d 445 (2007). Under the abuse-of-discretion standard, we

will not reverse a district court so long as the district court’s ruling “does not

constitute a clear error of judgment.” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (quotations omitted). Whether a sentence is reasonable is

guided by the factors outlined by Congress in 18 U.S.C. § 3553(a). United States

v. Pugh, 515 F.3d 1179, 1188-89 (11th Cir. 2008). The factors included in

18 U.S.C. § 3553(a) are:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the 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
      needed educational or vocational training or medical care; (6) the
      kinds of sentences available; (7) the Sentencing Guidelines range;

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      (8) pertinent policy statements of the Sentencing Commission; (9) the
      need to avoid unwanted sentencing disparities; and (10) the need to
      provide restitution to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam) (citing 18

U.S.C. § 3553(a)). The burden of establishing that a sentence is unreasonable lies

with the party challenging the sentence. Pugh, 515 F.3d at 1189.

      In determining whether a sentence is reasonable, we first must determine

whether the sentence was procedurally reasonable. Gall, 552 U.S. at 51, 128 S.

Ct. at 597. Factors we must consider in determining procedural reasonableness

include whether the district court properly calculated the guidelines range,

improperly treated the Guidelines as mandatory, failed to consider the § 3553(a)

factors, selected a sentence based on clearly erroneous facts, or failed to

adequately explain its chosen sentence. Id. After determining that the sentence is

procedurally reasonable, we then must consider the substantive reasonableness of

the sentence. Id. A sentence is substantively reasonable if, under the totality of

the circumstances, it achieves the purposes of § 3553(a). See Pugh, 515 F.3d at

1191. A sentence may be substantively unreasonable where a district court

“unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent

§ 3553(a) factors, selected the sentence arbitrarily, or based the sentence on




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impermissible factors.” United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir.

2009).

      When a district court decides that a variance is appropriate, “it should

explain why that variance is appropriate in a particular case with sufficient

justifications.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.) (quotation

omitted), cert. denied, 129 S. Ct. 2847 (2009); see also 18 U.S.C. § 3553(c)(2)

(providing that a sentencing court, when imposing a sentence outside the

applicable guidelines range, must state in open court the reasons for its imposition

of the chosen sentence and the specific reason for the variance). “The

justifications must be compelling enough to support the degree of the variance and

complete enough to allow meaningful appellate review.” Shaw, 560 F.3d at 1238

(quotations omitted). The district court need not, however, provide an

extraordinary justification for a sentence outside the guidelines range. Id.

Although we may consider the extent of the deviation, we must “give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” United States v. Williams, 526 F.3d 1312, 1322

(11th Cir. 2008) (per curiam) (citation omitted).

      In determining a reasonable sentence, the district court may consider facts

that already have been taken into account in calculating the defendant’s guidelines

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range. See id. at 1323–24 (providing that a district court could consider a

defendant’s prior offenses in deciding to impose an upward variance, even though

those offenses already were included in the defendant’s criminal history score);

see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.”). In fashioning a reasonable

sentence, a district court “may . . . consider relevant facts concerning a defendant’s

background, character, and conduct.” United States v. Faust, 456 F.3d 1342, 1348

(11th Cir. 2006) (quotation omitted).

      The district court followed the proper procedures in determining

Lugo-Gutierrez’s sentence and adequately explained why it believed that a

sentence within the guidelines range would not satisfy the § 3553(a) factors.

Thus, his sentence is procedurally reasonable. Lugo-Gutierrez’s 36-month

sentence is also substantively reasonable because the sentencing court did not

abuse its discretion in determining that an upward variance was necessary to serve

the purposes of § 3553(a). Accordingly, we affirm the district court’s imposition

of a 36-month sentence.




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       Lugo-Gutierrez’s indictment and judgment erroneously state that he was

deported for an aggravated felony, rather than a felony, although they correctly

reference the penalty provision for deportation following a felony conviction, 8

U.S.C. § 1326(b)(1). The parties did not raise this issue on appeal, but we may

remand with instructions to correct a clerical error in the judgment. United States

v. Massey, 443 F.3d 814, 822 (11th Cir. 2006). “Furthermore, it is fundamental

error for a court to enter a judgment of conviction against a defendant who has not

been charged, tried, or found guilty of the crime recited in the judgment.” Id.

(citation and quotations omitted).

       Because the written judgment incorrectly states that Lugo-Gutierrez was

convicted for an aggravated felony, rather than a felony, we remand for correction

of that clerical error.

       Upon a thorough review of the entire record on appeal, and after

consideration of the parties’ briefs, we affirm in part and remand in part.

       AFFIRMED IN PART, REMANDED IN PART.




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