                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-12183         ELEVENTH CIRCUIT
                                   Non-Argument Calendar      JANUARY 4, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                            D.C. Docket No. 0:07-cr-60121-WPD-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

JOSE PEREZ HILARIO,

llllllllllllllllllll                                           Defendant-Appellant.

                                ________________________

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

                                       (January 4, 2011)

Before EDMONDSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Jose Perez Hilario appeals his 15-month sentences for making a false claim

in an application for a passport, 18 U.S.C. § 1542, making a false claim to United

States citizenship, 18 U.S.C. § 911, and perjury, 18 U.S.C. § 1621. On appeal,

Hilario argues that his sentences are substantively unreasonable. He contends that

the district court should have granted a downward variance because his guideline

range overrepresented his criminal history. For the reasons stated below, we

affirm.

                                         I.

      According to the presentence investigation report (“PSI”), Hilario applied

for a United States passport at the Ft. Lauderdale, Florida Post Office on February

6, 2006. In his written application, Hilario stated that his name was Trinidy

Gonzalez and that he was a United States citizen. He also provided a Puerto Rican

birth certificate in the name of Trinidy Gonzalez. As part of the application

process, Hilario took an oath that the statements in his written application were

true. The Bureau of Diplomatic Security later learned that Hilario was a

permanent resident who was born in the Dominican Republic. The Bureau also

discovered that Hilario was the subject of active arrest warrants issued by the New

York City Police Department and the United States Marshals Service.

      The PSI determined that Hilario had a total offense level of 12. With

                                         2
respect to Hilario’s criminal history score, the PSI noted that he had two prior

convictions. In April of 1990, Hilario was convicted of criminal sale of a

controlled substance after he attempted to sell half a kilogram of cocaine to an

undercover police officer. He was sentenced to a term of 4 years to life

imprisonment, and was paroled in December of 1991. In 1998, Hilario was

convicted of conspiracy to possess with intent to distribute cocaine. The charged

conspiracy involved the distribution of 68 kilograms of cocaine in the New York

City area. Hilario was sentenced to time served, to be followed by a five-year term

of supervised release. In October 2001, Hilario was arrested for violating the

terms of his supervised release, but was released on bond. In May 2002, the

district court issued a second warrant for Hilario’s arrest after he failed to report to

the probation officer as ordered. Hilario was not arraigned on the second warrant

until June 2009. Shortly thereafter, Hilario’s supervised release was revoked, and

he was sentenced to time served, with no supervision to follow.

      In scoring Hilario’s criminal history, the PSI imposed three points for his

1991 sentence, and three points for his 1998 sentence. The PSI added two

additional points because Hilario committed the present offense while on

supervised release for his 1998 conviction. Therefore, Hilario had a total of eight

criminal history points, placing him in category IV. The PSI determined that

                                           3
Hilario had a guideline range of 21-27 months’ imprisonment.

      Hilario objected that he should not have received three criminal history

points for his 1998 sentence because he was sentenced to time served. He argued

that he should only have received one criminal history point because the sentence

for that offense did not exceed 60 days. Hilario also requested a downward

variance on the ground that his guideline range substantially overrepresented his

criminal history. He noted that his prior convictions had occurred many years

before his offense conduct in this case.

      At the sentencing hearing, the district court sustained Hilario’s objection to

his criminal history score. The court assessed only one point for the 1998

conviction, which reduced Hilario’s criminal history category from IV to III. The

court determined that Hilario had a guideline range of 15 to 21 months’

imprisonment.

      Hilario then renewed his request for a downward variance. He argued that

his guideline range substantially overrepresented his criminal history because it

did not reflect the fact that his prior offenses occurred in 1990 and 1996, 16 and

10 years before the present offense. He asked the court to sentence him to 12

months and 1 day in prison. The government agreed that Hilario’s criminal history

was overrepresented, but it recommended that the court impose a sentence of 15

                                           4
months.

      In pronouncing sentence, the district court stated that it had considered the

18 U.S.C. § 3553(a) factors. The district court concluded that Hilario’s guideline

range did not overrepresent his criminal history:

      Mr. Perez Hilario got four years to life back in 1991 for selling half a
      kilogram of cocaine He only did . . . seven-and-a-half months in jail,
      got out, and then got arrested for conspiracy to distribute 68
      kilograms of cocaine. He got time served. A couple of years later
      was put on supervised release, absconded from supervised release.

      I don’t think a criminal history category three overrepresents someone
      who has had this serious of an involvement with the criminal justice
      system.

The court denied Hilario’s request for a variance and imposed concurrent

15-month sentences for all three counts of conviction.

                                         II.

      We review a sentence imposed by a district court for reasonableness, using

an abuse of discretion standard. United States v. Livesay, 587 F.3d 1274, 1278

(11th Cir. 2009). We follow a two-step process in reviewing a sentence. First, we

must ensure that the district court did not commit a significant procedural error in

sentencing the defendant. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586,

597, 169 L.Ed.2d 445 (2007). Second, we consider whether the defendant’s

sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors. Id.

                                          5
at 51, 128 S.Ct. at 597.

      The party challenging the sentence has the burden of showing that it is

unreasonable in light of the record and the § 3553(a) factors. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). We “recognize that there is a range of

reasonable sentences from which the district court may choose,” and ordinarily

expect a sentence within the defendant’s advisory guideline range to be

reasonable. Id. We will not reverse a sentence as substantively unreasonable

unless 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 arriving

at 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) (quotation omitted).

      In this case, Hilario’s 15-month sentences are substantively reasonable.

Although Hilario’s prior convictions occurred 16 and 10 years before the offense

conduct in this case, both of those prior convictions were for serious drug

offenses. Hilario also violated the terms of his supervised release with respect to

his 1998 conviction. Given those facts, district court appropriately concluded that

a category of III did not overrepresent Hilario’s criminal history.

      In light of Hilario’s prior offenses, a sentence within the guideline range

                                          6
was needed to promote respect for the law and to reflect Hilario’s history and

characteristics. See 18 U.S.C. § 3553(a)(1), (2)(A). A guideline sentence also has

the effect of deterring others from committing similar offenses. See 18 U.S.C.

§ 3553(a)(2)(B). Hilario’s total sentence is at the low end of his guideline range

of 15-21 months, and we ordinarily expect a sentence within the guideline range to

be reasonable. See Talley, 431 F.3d at 788. Accordingly, we conclude that the

district court did not abuse its discretion by sentencing Hilario to concurrent terms

of 15 months’ imprisonment.

      AFFIRMED.




                                          7
