              Case: 17-11277    Date Filed: 10/17/2017   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-11277
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 1:16-cr-00391-WSD-JKL-1

UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                      versus

JUAN CARLOS CORDOVA-ALVARADO,
a.k.a. Jose Carlos Argeta,
a.k.a. Juan Carlos Cordova-Alarado
a.k.a. Juan Carlos Cordova-Alvardo,

                                                              Defendant-Appellant.

                          ________________________

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

                                (October 17, 2017)

Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Juan Carlos Cordova-Alvarado appeals his 15-month sentence following his

conviction for one count of unlawful reentry into the United States by a previously
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deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Cordova-

Alvarado argues that his sentence was substantively unreasonable because the

district court refused to grant him a downward departure based on his cultural

assimilation in the United States, and because the district court failed to credit (or

consider) the three months he spent in a U.S. Immigration and Customs

Enforcement (“ICE”) detention center.

      We review our subject matter jurisdiction de novo. United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). We lack jurisdiction to review a

district court’s discretionary refusal to grant a downward departure, unless the

district court incorrectly believed that it lacked the authority to depart from the

guideline range. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006).

Further, we will assume that the sentencing court properly understood its authority,

absent a record indication to the contrary. Id. at 1228.

      Where appropriate, we review the substantive reasonableness of a sentence

under the deferential abuse of discretion standard of review. United States v. Irey,

612 F.3d 1160, 1188 (11th Cir. 2010) (en banc). In conducting our review, we

consider the totality of the circumstances and whether the statutory factors in §

3553(a) support the sentence in question. United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008). The party challenging the sentence bears the burden

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


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United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not

apply a presumption of reasonableness to a sentence imposed within the

guidelines, we ordinarily expect such a sentence to be reasonable. United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008). That a sentence is below the statutory

maximum penalty is a further indicator of reasonableness. See Gonzalez, 550 F.3d

at 1324 (finding a sentence reasonable in part because it was well below the

statutory maximum).

      A district court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in § 3553(a)(2), including the need

to reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, and protect the public from

future crimes of the defendant. See 18 U.S.C. § 3553(a)(2). In imposing its

sentence, the district court must also consider the nature and circumstances of the

offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guideline range, any pertinent policy statements of the

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7). The district

court need not state on the record that it has explicitly considered each of the

§ 3553(a) factors or discuss them all individually, so long as it expressly




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acknowledges that it considered the party’s arguments on the sentencing factors.

United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

      The weight accorded to any one § 3553(a) factor is a matter committed to

the sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007). The district court is also free to attach “great weight” to one

factor over the others. United States v. Rosales-Bruno, 789 F.3d 1249, 1255 (11th

Cir. 2015) (quotation omitted). We will not overturn a sentence 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.” Irey,

612 F.3d at 1190.

      The Guidelines commentary for U.S.S.G. § 2L1.2, which applies to unlawful

entry crimes, provides that a downward departure “may be appropriate on the basis

of cultural assimilation” where the defendant formed cultural ties primarily with

the United States after residing continuously in the country since childhood, and

where those cultural ties provided the primary motivation for the entry. U.S.S.G.

§ 2L1.2, comment. (n. 7). In determining whether to grant such a departure, the

district court should consider, inter alia, the age at which the defendant began

living continuously in the U.S., whether the defendant attended school in the U.S.,




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the nature and extent of the defendant’s familial ties in and outside of the U.S., and

the defendant’s criminal history. Id.



      As a preliminary matter, we lack jurisdiction to expressly review the district

court’s refusal to grant Cordova-Alvarado a downward departure. Nothing in the

record suggests that the court mistakenly believed it lacked jurisdiction to grant the

requested relief; on the contrary, the district court specifically considered Cordova-

Alvarado’s arguments and determined that the departure was not warranted.

Moreover, Cordova-Alvarado does not argue that the district court held such a

mistaken belief. Accordingly, the denial of a downward departure is not a

reviewable decision. Dudley, 463 F.3d at 1228.

      To the extent Cordova-Alvarado generally challenges the substantive

reasonableness of his sentence, in part based on the cultural assimilation factors,

his arguments lack merit. At the outset, the facts that the sentence was at the low

end of the Guidelines range and well below the statutory minimum show that the

sentence was substantively reasonable. See Hunt, 526 F.3d at 746; Gonzalez, 550

F.3d at 1324. Moreover, the district court specifically considered the facts that

Cordova-Alvarado spent the bulk of his life in the U.S. and had extensive family

here, and it correspondingly decided to give him “a break.” Due to Cordova-

Alvarado’s extensive criminal history, repeated attempts to enter the country


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illegally, and several probation violations, however, the district court determined

that the needs for deterrence and to reflect the seriousness of the crime warranted

the sentence. It was also clear from the pronouncement that the district court

determined the need for Cordova-Alvarado to receive a Guidelines sentence in

light of his history and the § 3553(a) factors. The district court had wide discretion

to weigh these factors and was free to attach “great weight” to some over the

others; nothing in the record leads to the “definite and firm conviction that [it]

committed a clear error of judgment” in doing so. See Clay, 483 F.3d at 743;

Rosales-Bruno, 789 F.3d at 1255; Irey, 612 F.3d at 1190.

      Cordova-Alvarado also challenges his sentence as substantively

unreasonable because the district court did not credit him with the 3 months he had

already spent in prison. As discussed above, the court gave him a sentence at the

low end of the guidelines range and gave detailed reasons for the sentence. To the

extent Cordova-Alvarado’s brief on appeal might be construed as implicitly

arguing that the district court reversibly erred in failing to vary below the

guidelines range to credit him with the 3 months previously served, we conclude

that the district court did not abuse its discretion in choosing not to vary

downward.

      In sum, the district court did not abuse its discretion in imposing a 15-month

sentence, and the sentence was substantively reasonable. Accordingly, we affirm.


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AFFIRMED.




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