FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 17, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15879

Non-Argument Calendar

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D. C. Docket No. 09-00274-CR-1-JOF-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ALMANZA-LOPEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(August 17, 2010)

Before EDMONDSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:

Defendant-Appellant Juan Almanza-Lopez appeals his above-guidelinesrange sentence imposed after he pleaded guilty to illegal re-entry into the United

States, in violation of 8 U.S.C. § 1326(a). No reversible error has been shown; we

affirm.

Defendant, a native and citizen of Mexico, was deported to Mexico in

September 1998 after he was convicted of carrying a concealed weapon. He was

arrested in Cobb County, Georgia, in 2005 for a drug possession offense; he was

convicted and released on probation. Defendant was again arrested in Cobb

County, Georgia, in 2007 for possession of drugs, battery and being drunk in

public; he was convicted and remained in custody until his conditional release in

July 2008. Defendant violated his conditional release by testing positive for drugs

and was taken again into custody. In April 2009, Defendant admitted to an

Immigration and Customs Enforcement officer that he had been removed from the

United States and had reentered illegally. Defendant’s guideline imprisonment

range was 9 to 15 months; the sentencing court imposed a sentence of 16 months’

imprisonment to be followed by a one-year term of supervised release.

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Defendant speaks of his sentence as 18 months. The district court imposed a sentence of 1

16 months after it applied a two-month credit for time Defendant was in civil detention before

being brought into federal custody.

2
Defendant argues on appeal that his sentence was substantively

unreasonable: the above-guidelines sentence imposed was not justified in the light

of the factors set out in 8 U.S.C. § 3553(a)(2). Defendant maintains that his is a

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“cookie-cutter” case supporting no upward variance, that the district court focused

excessively on Defendant’s criminal record, and that it wrongly emphasized only

the public safety factors listed in section 3553(a)(2).

Before imposing the 15-month sentence, the district court said:

The court has considered the guidelines in this case.... [Y]ou come

before this court presenting a most unattractive picture.... You did not

get credit for a lot of the convictions that appear with your name early

on. You either are or were a member of two different gangs. You are

involved with firearms and drugs.

...

[Y]ou have taken every opportunity in this country while you have

been here and have decided to be a drug dealer and to deal with

firearms and not provide by the order of the court that put you on

probation, parole, or what have you. There is no reason for me to be

lenient with you.

...

If the maximum sentence in this case was greater, I would have given

him a bigger sentence....

Appellate review of the substantive reasonableness of a sentence -- whether

inside or outside the guidelines range -- is under an abuse-of-discretion standard.

Defendant frames the issue repeatedly as a challenge to the substantive reasonableness 2

of the sentence imposed. In one sentence of his brief, Defendant asserts that the sentence was

procedurally unreasonable; but he fails to advance a basis for a procedural reasonableness

challenge. We consider only the substantive reasonableness challenge.

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Gall v. United States, 128 S.Ct. 586, 597 (2007). This review is deferential. As

Gall explains, an appellate court reviewing a sentence for reasonableness must take

into account the totality of the circumstances. No presumption of

unreasonableness applies to an outside-guidelines-range sentence. Id. The extent

of deviation, along with the other circumstances, may be considered; but due

deference must be accorded the district court’s decision that the section 3553(a)

factors justify the extent of the variance. Id. And it is the appellant who bears the

burden of establishing the absence of reasonableness in the light of the record and

the section 3553(a) factors. See United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir 2008), citing United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

The district court must evaluate all of the section 3553(a) factors when

arriving at a sentence, but it is under no obligation to detail for the record its

consideration of each of these individual factors. United States v. Scott, 426 F.3d

1324, 1329 (2005). And in the course of its consideration, the district court is

permitted to attach “great weight” to one factor over others, see Gall, 128 S.Ct. at

600. Among the section 3553(a) factors that must be considered in crafting a

reasonable sentence are the need to reflect the seriousness of the offense, to

promote respect for the law, to afford adequate deterrence to criminal conduct, and

to protect the public from further crimes of the defendant. See 18 U.S.C. §

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3553(a). The district court determined that these factors warranted the upwardvariant sentence imposed. That Defendant takes issue -- or even if we were to

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take issue -- with the weight that the district court gave to the section 3553(a)

factors, without more, supports no reversal. See Gall, 128 S.Ct. at 597.

Defendant has failed to carry his burden of establishing that his sentence was

substantively unreasonable. Under an abuse of discretion standard of review, we

cannot say that the 16-month sentence imposed (or the 18-month sentence as

Defendant prefers to characterize it) -- albeit somewhat above the 9-to-15-month

guideline range -- was substantively unreasonable in the totality of the

circumstances.

AFFIRMED.

Defendant’s argument to the contrary notwithstanding, the district court may consider 3

facts that have already been taken into account in calculating the defendant’s guideline range. 

See United States v. Williams, 526 F.3d 1312, 1323-24 (11 Cir. 2008) (district court could th

consider defendant’s prior offenses in deciding to impose an upward variance even though those

offenses were already included in defendant’s criminal history score.).

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