                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                   FILED
                                                            U.S. COURT OF APPEALS
                                 No. 10-15445                 ELEVENTH CIRCUIT
                             Non-Argument Calendar                JUNE 16, 2011
                           ________________________                JOHN LEY
                                                                    CLERK
                    D.C. Docket No. 1:10-cr-00238-JEC-AJB-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                       versus

HECTOR CABELLO,

                                                          Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                  (June 16, 2011)

Before BARKETT, MARCUS and FAY, Circuit Judges.

PER CURIAM:

      Hector Cabello appeals his 46-month, low-end guideline sentence for illegal

reentry into the United States, in violation of 8 U.S.C. § 1326(a), (b)(2). He
argues that his sentence is substantively unreasonable, particularly in light of the

amount of time he had already served in state court for violating his probation in

another case by committing the instant offense. For the reasons set forth below,

we affirm.

                                          I.

      In 1997, Cabello was convicted of child molestation in Gwinnett County,

Georgia. He was deported in April 1999, and he immediately reentered the United

States without applying for or receiving permission from the government. He was

found in the United States in 2006 and taken into state custody. The Gwinnett

County court revoked his probation in 2007 for (1) being in the United States

illegally, (2) failing to obtain sex-offender evaluation or treatment as ordered by

the court, and (3) being in arrears on his probation supervision fee. He was

incarcerated until April 5, 2010, and arrived the next day at the Gwinnett County

Sex Offender Registry Office in order to register as a sex offender. The

Immigration and Customs Enforcement (“ICE”) agent on duty was notified that

Cabello was an illegal alien, and Cabello was taken into federal custody.

      Cabello pled guilty to entering the United States without permission after

having previously been deported, in violation of 8 U.S.C. § 1326(a), (b)(2). In

calculating his guideline sentencing range, the probation office assigned a base

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offense level of 8, pursuant to U.S.S.G. § 2L1.2, and added 16 levels pursuant to §

2L1.2(b)(1)(A) because he previously was deported subsequent to an aggravated

felony. With a 3-level reduction for acceptance of responsibility, he had a total

offense level of 21. In light of the child-molestation conviction and the fact that

he was on parole for that offense when he reentered the United States, Cabello had

five criminal-history points, which placed him in criminal history category III. He

was subject to a statutory maximum sentence of 20 years’ imprisonment and a

guideline range of 46-57 months’ imprisonment.

      Cabello objected that the child-molestation conviction was obtained in

violation of Padilla v. Kentucky, 559 U.S. __, 130 S.Ct. 1473, 1483, 176 L.Ed.2d

284 (2010) (holding that defense counsel must advise noncitizen client of

immigration consequences of conviction), and, thus, it should not contribute to his

offense level or his criminal-history score. He added that he was innocent of the

child-molestation charge and had only pled to it under North Carolina v. Alford,

400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). He further objected that he

should receive a sentence of time served, as (1) his only prior felony conviction

was obtained in violation of Padilla and (2) he had already spent close to four

years in state and federal custody after his probation was revoked.

      At the sentencing hearing, Cabello introduced an affidavit from his attorney

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in the child-molestation case, which noted that the attorney did not advise Cabello

of the possibility of deportation if he entered a nolo contendere plea. He also

introduced an affidavit from his ex-wife, who was the mother of the victim, stating

her belief that the accusation against Cabello was false. He argued that he had

entered an Alford plea because he thought that he would be in custody for only “a

little bit of time,” then would be released on probation. He argued that the prior

conviction should not be included in his guideline calculations due to the Padilla

violation, and that if the court did include it, the Padilla violation should be

considered among the grounds for a variance.

      As to the 18 U.S.C. § 3553(a) factors, Cabello noted that the federal

government found him in state custody in September 2006, but he was not arrested

and indicted on the instant charges until April 2010, after he was released on

parole from state custody. He stated that other circuits have held that such a delay

may be grounds for a sentencing variance and that credit may be awarded for time

served in state custody. Cabello had spent over 42 months in state custody before

going directly into federal custody, meaning that he had been incarcerated for a

total of 49 months and 24 days as of the date of the hearing. This number, he

asserted, exceeded the low end of his guideline range. As the parole violation was

triggered by the illegal reentry, he argued that the state had already punished him

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for the instant conduct.

      Cabello further noted that, when his ex-wife learned that he was in federal

custody, she called counsel to say that her sister had made the molestation

allegations out of anger at Cabello. She expressed her regret for not trying to

defend Cabello at the time. Cabello also introduced a letter of support from his

current wife, who recently had moved to Mexico with their three children. He

stated that his wife and their children all were United States citizens, but they were

remaining in Mexico to await Cabello’s return.

      He argued that he had been in the United States from 1999 to 2006, during

which time he married, had children, worked in construction and painting,

purchased some equipment for his trade, and stayed out of trouble. His family

took his equipment with them when they moved to Mexico, so that he can

establish himself there as soon as he is deported.

      The government introduced a letter from the state prosecutor in the

molestation case, who said that Cabello had not shown remorse and alleged that

Cabello had “terrorized” his then-wife and her children. It also noted that Cabello

was found by law enforcement when he was arrested in 2006 on a later-dismissed

charge of loitering for sex. Cabello argued that the evidence in the child-

molestation case did not clearly indicate that a sexual act had been committed, and

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that the allegation that he “terrorized” the family was based on a false accusation

by his then-wife’s sister. He apologized to the court for having returned to the

United States, indicated that he understood his situation and that it would not

happen again, and assured the court that he wanted to go back to his family and his

country.

      The court overruled the objections to the guideline calculations. As to the

§ 3553(a) factors, it appeared to the court that Gwinnett County had imposed a

substantive sentence based on both Cabello’s reentry and the technical violations,

and that, even though the loitering-for-sex offense was not the basis for the

revocation, the Gwinnett County judge probably was aware that it was “not good”

for Cabello to have been arrested on a second sex-related offense. Nevertheless,

the district court recognized that it could impose a separate sentence for the instant

illegal-reentry offense. It found that the child-molestation offense was “quite

serious,” that the letter from the state prosecutor indicated that Cabello showed no

remorse and had a history of terrorizing his family, and that corroborating

evidence indicated sexual contact with the child. The court further found that the

ex-wife’s affidavit was not extraordinary enough to cause the court to ignore the

conviction. It also noted that Cabello appeared to be affluent by Mexican

standards, so there was no particular reason that he needed to come back to the

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United States after his deportation.

      As for whether the Gwinnett County conviction served as sufficient

punishment, the court stated, “I don’t think it’s right[,] just because a county

actually takes seriously this kind of violation[,] that we ignore it . . . .” Returning

to the country after a child-molestation conviction was very serious. It suggested a

danger to children or other people and a total disregard for the law. The court

feared that Cabello would return to the United States again, and it had found that

the only adequate deterrence in such cases is a long sentence, in excess of two or

three years, in order to impress upon the defendants that coming back to the

country “will be really unpleasant.” The court concluded that the record and the

§ 3553(a) factors warranted a sentence in addition to whatever he might already

have served for the probation violation.

      The court imposed a low-end guideline sentence of 46 months’

imprisonment, with credit for the time Cabello had served since being taken into

custody by ICE in April 2010, followed by 3 years’ supervised release.

                                           II.

      We review a sentence for substantive reasonableness under an abuse-of-

discretion standard. United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010)

(en banc), cert. denied, 131 S.Ct. 1813 (2011). We will reverse a sentence under

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

(2007). We will not reverse merely because we believe that a different sentence

might have been more appropriate. Irey, 612 F.3d at 1191. Although we do not

apply a presumption of reasonableness to a within-guideline sentence, “ordinarily

we would expect a sentence within the Guidelines range to be reasonable.” United

States v. Talley, 431 F.3d 784, 787-88 (11th Cir. 2005). The appellant bears the

burden of establishing that the sentence is unreasonable. Id. at 788.

      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,” 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

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

                                           8
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 sufficient, but no greater than necessary, to punish, deter, protect

the public, and provide the training and care outlined in the statute. § 3553(a).

      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.

      As a policy statement, Application Note 3(C) to U.S.S.G. § 5G1.3 states, “in

cases in which the defendant was on federal or state probation . . . at the time of

the instant offense and has had such probation . . . revoked[,] . . . the Commission

recommends that the sentence for the instant offense be imposed consecutively to

the sentence imposed for the revocation.” § 5G1.3(c) & comment. (n.3(C)).

      In United States v. Morales-Castillo, 314 F.3d 561, 562 (11th Cir. 2002),

the district court ordered a sentence for an illegal-reentry offense to run

consecutively to a state sentence for a probation revocation that was based on the

                                           9
same illegal reentry. We held that the district court’s decision was proper under §

5G1.3(c) and Application Note 6, the predecessor to Note 3(C), and that the court

had appropriately recognized its discretion to choose between consecutive and

concurrent sentencing. See id. at 564. This holding is consistent with the Ninth

and Fifth Circuit cases relied upon by Cabello, both of which held merely that the

district courts have discretion, under appropriate circumstances, to grant

downward departures in order to account for time served in state custody or for the

“lost opportunity” for concurrent sentencing. See United States v. Barrera-

Saucedo, 385 F.3d 533, 536-37 (5th Cir. 2004); United States v. Sanchez-

Rodriguez, 161 F.3d 556, 563-64, 563 n.14 (9th Cir. 1998) (en banc).

      Here, the district court carefully considered the § 3553(a) factors,

particularly Cabello’s background and criminal history. The court expressed

concern at the serious nature of the child-molestation offense and the fact that

Cabello was arrested for another sex-related offense in 2006. It described the need

to protect children and others from future offenses, and it found that Cabello had

shown a total disregard for the law. It noted the state prosecutor’s assertions that

Cabello had “terrorized” his first wife and her family. It also discussed the need

for adequate deterrence through a lengthier sentence. As to the probation-

revocation issue, the court found that the state sentence came about largely

                                         10
because of the illegal-reentry offense and that the state court would have

considered Cabello’s later loitering-for-sex arrest, but it also acknowledged that it

had the option of imposing the federal sentence to run consecutively to the state

sentence. The district court ultimately concluded that the § 3553(a) factors

warranted a sentence of imprisonment in addition to the term Cabello had already

served in state court for the probation violation.

      Thus, the record indicates that the court carefully weighed the § 3553(a)

factors and the circumstances of the state sentence before reasonably determining

that a low-end guideline sentence, without credit for time served in state custody,

was necessary and sufficient to achieve the statutory purposes of sentencing. See

Irey, 612 F.3d at 1189; Talley, 431 F.3d at 786. It did not weigh these factors

unreasonably or otherwise make a clear error of judgment. See § 5G1.3, comment.

(n.3(C)); Irey, 612 F.3d at 1189; Morales-Castillo, 314 F.3d at 564. Therefore,

Cabello has not shown that the court abused its discretion in imposing the 46-

month sentence. See Irey, 612 F.3d at 1188.

      For the foregoing reasons, we affirm Cabello’s sentence.

      AFFIRMED.




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