[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11955

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ELBER BARAHONA GOMEZ, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:20-cr-00307-SDM-TGW-1

____________________

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2 Opinion of the Court 21-11955

Before NEWSOM, LAGOA, and LUCK, Circuit Judges. 

PER CURIAM:

Elber Barahona Gomez appeals his total sentence of 

168 months’ imprisonment after he pleaded guilty to conspiracy to 

possess, and aiding and abetting the possession of, five kilograms 

or more of cocaine with the intent to distribute it, while aboard a 

vessel subject to the jurisdiction of the United States. Gomez argues that the district court’s sentence is substantively unreasonable 

because it determined his sentence without adequately considering 

the 18 U.S.C. § 3553(a)(2) factors, resulting in a sentence that, according to him, was greater than necessary. After careful review, 

we affirm.

When reviewing for substantive reasonableness, we consider the totality of the circumstances under a deferential abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). 

Section 3553(a) of Title 18 requires a district court to impose a sentence that is sufficient, but not greater than necessary, to comply 

with the purposes listed under § 3553(a)(2), including the need to 

reflect the seriousness of the offense; promote respect for the law;

provide just punishment; deter criminal conduct; protect the public; and provide educational and vocational training, medical care, 

and other correctional treatment in the most effective manner. 

18 U.S.C. § 3553(a)(2)(A)–(D). Other § 3553(a) factors include the 

nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the 

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21-11955 Opinion of the Court 3

Sentencing Guidelines, the need to avoid unwarranted sentencing 

disparities, and the need to provide restitution to victims. Id. (a)(1), 

(3)–(7).

The party challenging the sentence bears the burden of establishing its unreasonableness based on the facts of the case and 

the 18 U.S.C. § 3553(a) factors. United States v. Shabazz, 887 F.3d 

1204, 1224 (11th Cir. 2018). More generally, a district court abuses 

its discretion when it (1) fails to consider relevant factors that were 

due significant weight, (2) gives significant weight to an improper 

or irrelevant factor, or (3) commits a clear error of judgment in 

considering proper factors. United States v. Irey, 612 F.3d 1160, 

1189 (11th Cir. 2010) (en banc). 

We have emphasized that we must give due deference to 

the district court to consider and weigh the proper sentencing factors. Shabazz, 887 F.3d at 1224. The district court does not have 

to give all the factors equal weight and is given discretion to attach 

great weight to one factor over another. United States v. RosalesBruno, 789 F.3d 1249, 1254 (11th Cir. 2015). Along with the 

§ 3553(a) factors, the district court should also consider the particularized facts of the case and the guideline range. Id. at 1259–60. 

However, it maintains discretion to give heavier weight to any of 

the § 3553(a) factors or combination of factors than to the guideline 

range. Id. at 1259. 

The district court also has wide discretion to decide whether 

the § 3553(a) factors justify a variance. Gall, 552 U.S. at 51. When 

rejecting a request for a variance and imposing a guideline 

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4 Opinion of the Court 21-11955

sentence, the sentencing judge need not issue a lengthy explanation 

so long as the judge considered the parties’ arguments and the context and record indicated the reasoning behind his conclusion. Irey, 

612 F.3d at 1195.

We do not apply a presumption of reasonableness to sentences within the guideline range, but we ordinarily expect such a 

sentence to be reasonable. United States v. Stanley, 739 F.3d 633, 

656 (11th Cir. 2014). We have held that we will only vacate a sentence based on substantive unreasonableness 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 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. 

Here, Gomez’s sentence is not substantively unreasonable. 

The district court explicitly and extensively examined each of the 

18 U.S.C. § 3553(a)(2) factors in deciding on a sentence that was 

sufficient but not greater than necessary, and there is no indication 

that the district court failed to consider relevant factors that were 

due significant weight, gave significant weight to an improper or 

irrelevant factor, or committed a clear error of judgment in considering proper factors. Irey, 612 F.3d at 1189. 

Specifically, the district court considered § 3553(a)(2)(A) 

when it stated that its sentence must enhance respect for the law, 

including by being neither too harsh nor too lenient and by ensuring that the law is not brought into disrepute. The district court 

also considered § 3553(a)(2)(B) when it explained that the sentence 

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must have a deterrent effect to discourage others from committing 

similar crimes. Additionally, the district court considered 

§ 3553(a)(2)(C) when it explained that its sentence must protect the 

community from drugs that could be brought into the United 

States and stated that cocaine is destructive and leads to crime and 

addiction. Finally, the district court considered § 3553(a)(2)(D) 

when it noted that Gomez wanted to continue his education while 

incarcerated and recommended that he be housed in a facility that 

offers vocational education programs for Spanish speakers. In addition to the factors in § 3553(a)(2), the district court considered the 

nature and circumstances of the offense and Gomez’s history and 

characteristics, in accordance with § 3553(a)(1), when it noted that 

the offense was part of a large-scale drug transportation scheme 

and considered the conditions of Gomez’s hometown, his level of 

education, and his family’s circumstances. 

In view of the discretion that the district court is granted 

when considering the factors in § 3553(a), Gomez’s arguments fail 

to demonstrate that the district court abused its discretion by not 

varying downward. Shabazz, 887 F.3d at 1224. The district court 

expressly provided its analysis for each of the § 3553(a)(2) factors, 

stated that it considered all § 3553(a) factors, and considered each 

of the parties’ arguments. See id. Moreover, the district court imposed a sentence within the guideline range, which we have stated 

ordinarily indicates that a sentence is reasonable. Stanley, 739 F.3d 

at 656. 

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And althoughGomez assertsin his initial brief on appeal that 

the district court failed to consider how COVID-19 affected Colombia and the overall economic status of Colombia, the district court 

did state that it was familiar with and considered the conditions of 

his hometown in Colombia. Furthermore, Gomez did not provide 

any evidence to the district court regarding the COVID-related arguments that he makes in his brief to this Court, and some of the 

evidence that he now cites was not even available at the time of his 

sentencing. A district court does not abuse its discretion by not 

considering evidence in fashioning a sentence that was not put before it. Gall, 552 U.S. at 51. 

For the foregoing reasons, the district court did not abuse its 

discretion, and Gomez’s sentence is substantively reasonable. 

AFFIRMED. 

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