                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JULY 2, 2009
                              No. 08-16991                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 08-00336-CR-T-23MSS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

RUDI PADILLA-URBINA,

                                                          Defendant-Appellant.


                        ________________________

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

                                (July 2, 2009)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Rudi Padilla-Urbina appeals his nine-month sentence for
transportation of illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and

(B)(i). On appeal, Padilla-Urbina argues that the district court failed to consider

the 18 U.S.C. § 3553(a) factors, specifically, whether there was an unwarranted

sentencing disparity between his nine-month sentence and the six-month sentence

of his co-conspirator, Cecilia Diaz-Hernandez. He contends that, although the

underlying facts were the same, his sentence was 50 percent higher than that of

Diaz-Hernandez. He also asserts that his sentence was unreasonable, given that the

district court failed to address the § 3553(a) factors.

      We review “all sentences–whether inside, just outside, or significantly

outside the Guidelines range–under a deferential abuse-of-discretion standard.”

United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotation omitted).

Pursuant to Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445

(2007), we must review the sentencing process for both procedural error and

substantive reasonableness. Livesay, 525 F.3d at 1091. Procedural errors occur

when the district court fails to calculate or improperly calculates the guidelines

range, treats the guidelines as mandatory, fails to consider the § 3553(a) factors,

selects a sentence based on clearly erroneous facts, or fails to explain adequately

the chosen sentence. Id. It is sufficient for the district court to acknowledge that it

has considered the § 3553(a) factors, but it need not explicitly discuss each of



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

substantive reasonableness “under an abuse of discretion standard, taking into

account the totality of the circumstances.” Livesay, 525 F.3d at 1091 (quotations

omitted). Our reasonableness review is deferential, and requires that we “evaluate

whether the sentence imposed by the district court fails to achieve the purposes of

sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). The party challenging the sentence “bears the burden of

establishing that the sentence is unreasonable in light of both [the] record and the

factors in section 3553(a).” Id.

      Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary, to comply with the purposes set forth in

paragraph (2) of this subsection,” namely, to reflect the seriousness of the offense,

promote respect for the law, provide just punishment for the offense, deter criminal

conduct, protect the public from future crimes of the defendant, and provide the

defendant with needed educational or vocational training or medical care. See 18

U.S.C. § 3553(a)(2). The sentencing court must also consider the following factors

in determining a particular sentence: the nature and circumstances of the offense

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

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



                                           3
Sentencing Commission, the need to avoid unwanted sentencing disparities, and

the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

“Disparity between the sentences imposed on codefendants is generally not an

appropriate basis for relief on appeal.” United States v. Regueiro, 240 F.3d 1321,

1325-26 (11th Cir. 2001).

      We have recognized that “there is a range of reasonable sentences from

which the district court may choose.” Talley, 431 F.3d at 788. Necessarily, there

are also “sentences outside the range of reasonableness that do not achieve the

purposes of sentencing stated in § 3553(a) and that thus the district court may not

impose.” United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006).

Although a sentence within the advisory guidelines range is not per se reasonable,

we would ordinarily expect such a sentence to be reasonable. See Talley, 431 F.3d

at 788; see also Rita v. United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2462-63,

168 L. Ed. 2d 203 (2007) (noting that a sentence within the properly calculated

Guidelines range “significantly increases the likelihood that the sentence is a

reasonable one.”).

      The record here demonstrates that the district court considered the 18 U.S.C.

§ 3553(a) factors and sentenced Padilla-Urbina within the guidelines range.

Contrary to Padilla-Urbina’s contention, that the record also demonstrates that the



                                          4
district court considered the three-month disparity between Padilla-Urbina’s

sentence and that of his co-conspirator, and explained why Padilla-Urbina deserved

a higher sentence, given that he was the “soul and inspiration” of the smuggling

operation. Moreover, we conclude that Padilla-Urbina has not satisfied his burden

of establishing that his sentence was unreasonable. Accordingly, we affirm

Padilla-Urbina’s nine-month sentence.

      AFFIRMED.




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