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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 17-11618, 17-11653
                        Non-Argument Calendar
                      ________________________

   D.C. Docket Nos. 2:15-cr-00108-SPC-MRM-1; 2:16-cr-00126-SPC-CM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                  versus

NELSON HERNANDEZ-TORRES,
a.k.a. Nelson Hernandez,

                                                         Defendant-Appellant.
                      ________________________

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

                            (November 9, 2017)

Before ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit
Judges.

PER CURIAM:
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      Nelson Hernandez-Torres was sentenced to 21 months imprisonment

following his conviction for illegal reentry and the revocation of his supervised

release for an earlier conviction. In this consolidated appeal, he contends that his

sentences are substantially unreasonable because the district court ordered them to

run consecutively instead of concurrently.

                                           I.

      In January 2016 Hernandez-Torres pleaded guilty to one count of illegal

reentry by a previously removed alien, in violation of 8 U.S.C. § 1326(a). He was

sentenced to time served followed by 12 months of supervised release. He was

removed and ordered to remain outside of the United States unless he was

authorized to return. Nine months later, in September 2016, Hernandez-Torres

was found in the United States without authorization. He was arrested and indicted

for a second violation of § 1326(a) and for violating his supervised release from

the earlier case. He pleaded guilty to the second illegal reentry offense and

admitted that he violated his supervised release by committing that offense.

      Hernandez-Torres’ presentence investigation report assigned him a base

offense level of 8 under United States Sentencing Guidelines § 2L1.2. He received

a 4 level enhancement because he had already been convicted once before for

illegal reentry, and a 2 level reduction for his acceptance of responsibility,

resulting in a total offense level of 10. With a criminal history category of IV,


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Hernandez-Torres’ guidelines range was 15 to 21 months imprisonment for the

illegal reentry offense. The statutory maximum term of imprisonment for that

offense is 10 years. 8 U.S.C. § 1326(b)(1).

      At his combined sentence and revocation hearing, the district court adopted

the undisputed factfindings and guidelines calculations in the PSR. The court

calculated a guidelines range of 6 to 12 months for the revocation of his supervised

release because it was a Grade B violation and Hernandez-Torres had a prior

criminal history category of II. The district court noted that the statutory

maximum term of imprisonment for that offense was one year.

      Hernandez-Torres asked the district court for concurrent sentences at the low

end of the guidelines range. He admitted he broke the law and acknowledged that

it was not long after his earlier conviction. But he explained that he did so with

good reason. His children live in the United States with his girlfriend, and one of

his daughters has Down syndrome. Although he found good work back home in

Mexico, he had learned that the Florida Department of Children and Families had

been called out to his girlfriend’s house, concerned that there was insufficient

supervision over their children. Because his girlfriend had to be at work most of

the day, Hernandez-Torres decided to come back to the United States to help take

care of his kids.




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      The district court sentenced Hernandez-Torres to 15 months imprisonment

for the illegal reentry conviction and 6 months for the violation of his supervised

release, to run consecutively. The court explained it gave Hernandez-Torres the

low end of the guidelines range to account for his “situation with his daughter and

why he felt compelled to come to this country,” but imposed the sentences

consecutively because Hernandez-Torres had violated the conditions of his

supervised released “very quickly” after being placed under supervision. His cases

were consolidated for appeal.

                                         II.

      Hernandez-Torres contends that the imposition of a consecutive sentence for

the revocation of his supervised release, instead of a concurrent sentence, rendered

his sentence substantively unreasonable. He argues that the district court

committed a clear error of judgment by giving too much weight to the sentencing

guidelines and too little weight to his family and personal characteristics. We

review the reasonableness of a sentence imposed after revocation of supervised

release for an abuse of discretion. United States v. Cunningham, 607 F.3d 1264,

1266 (11th Cir. 2010).

      When sentencing a defendant after revocation of supervised release under

18 U.S.C. § 3583(e), a district court must consider some of the sentencing factors

provided in 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(e). Relevant here, the court


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may consider the nature and circumstances of the offense and the defendant’s

history and characteristics. 18 U.S.C. §§ 3553(a), 3583(e). The district court must

consider the applicable § 3553(a) factors, but may attach greater weight to one or

more of them than to the others. United States v. Shaw, 560 F.3d 1230, 1237 (11th

Cir. 2009).

      When reviewing a sentence for substantive reasonableness, we will vacate a

sentence 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

imposing a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(en banc). The party challenging the sentence bears the burden of establishing that

the sentence is unreasonable in the light of the record and the § 3553(a) factors.

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although we do not

automatically presume a sentence within the guidelines range is reasonable, we

ordinarily expect it to be. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.

2008).

      In determining whether to impose a consecutive or concurrent term, the

district court must consider the factors set forth in § 3553(a). 18 U.S.C. § 3584(b).

According to the sentencing guidelines, “[a]ny term of imprisonment imposed

upon the revocation of . . . supervised release shall be ordered to be served


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consecutively to any sentence of imprisonment that the defendant is serving,

whether or not the sentence of imprisonment being served resulted from the

conduct that is the basis of the revocation of . . . supervised release.” U.S.S.G.

§ 7B1.3(f) (policy statement). “Similarly, it is the Commission’s recommendation

that any sentence of imprisonment for a criminal offense that is imposed after

revocation of . . . supervised release be run consecutively to any term of

imprisonment imposed upon revocation.” U.S.S.G. § 7B1.3(f), cmt. n.4.

      Hernandez-Torres has not met his burden of showing that his sentence was

substantively unreasonable. Both sentences were well within the applicable

guideline ranges and well below the statutory maximums, which is evidence of

reasonableness. Hunt, 526 F.3d at 746; United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008) (noting a sentence that is substantially below the maximum

statutory penalty is another indicator of the reasonableness of that sentence). And

it is clear that the district court considered Hernandez-Torres’ history and

characteristics by sentencing him to the low end of the guidelines range in order to

account for “the situation with his daughter.” By imposing his sentences

consecutively, the district court followed the sentencing guideline, § 7B1.3(f), and

took into account the circumstances of his offense — that he violated his




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supervised release shortly after his earlier conviction.1 Hernandez-Torres has not

demonstrated that, given those factors, a consecutive sentence was “greater than

necessary” to meet the goals of sentencing. 18 U.S.C. §§ 3553(a), 3583(e). As a

result, we are not left with a “definite and firm conviction” that the sentence

imposed here was outside the range of reasonable sentences dictated by the facts of

the case. See Irey, 612 F.3d at 1190.

       AFFIRMED.




       1
          Hernandez-Torres claims that by running the sentences consecutively he is being
“punished twice” for the same conduct. But the sentences are clearly for different conduct. The
revocation of his supervised release punishes him for violating the terms upon which the district
court conditioned his release By contrast, the sentence for illegal reentry punishes him for
illegally reentering the country again.
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