FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 30, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15897

Non-Argument Calendar

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D. C. Docket No. 08-00175-CR-FTM-99DNF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO REYES-GUTIERREZ,

a.k.a. Pedro Reyes Gutierrez,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 30, 2010)

Before CARNES, MARCUS and FAY Circuit Judges.

PER CURIAM:

Pedro Reyes-Gutierrez appeals from his 77-month sentence, imposed
following his conviction for illegal re-entry into the United States, in violation of 8

U.S.C. § 1326(a) and (b)(1). Reyes-Gutierrez argues that his sentence is

procedurally unreasonable because the district court failed to adequately explain

the basis for his sentence, and also failed to adequately consider the mitigating

evidence and arguments that he presented during his sentencing hearing.

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In addition, Reyes-Gutierrez argues that his sentence, which is at the low end

of his guideline range, is substantively unreasonable. In support of this argument,

Reyes-Gutierrez points to his familial ties, and asserts the 36-month sentence that

he suggested at sentencing would be severe. Reyes-Gutierrez also asserts that

there were mitigating circumstances surrounding his past offenses.

For the reasons set forth below, we affirm.

I.

A federal grand jury indicted Reyes-Gutierrez, charging that he, an alien

who had been convicted of a felony offense, had unlawfully entered the United

States after having previously been removed from the United States, in violation of

8 U.S.C. § 1326(a) and (b)(1). Reyes-Gutierrez pled guilty to the offense.

In preparing the presentence investigation report (“PSI”), the probation

 Reyes-Gutierrez also argues, in his reply brief, that the district court procedurally erred 1

by treating his guideline range as presumptively reasonable. We do not address this argument,

as Reyes-Gutierrez failed to raise it in his initial brief. See United States v. Britt, 437 F.3d 1103,

1104-05 (11th Cir. 2006). 

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officer noted that immigration authorities had deported Reyes-Gutierrez in July

2008. Thereafter, Reyes-Gutierrez was arrested in Florida on November 12, 2008,

for committing battery against his wife, Solidad Soriano. In an interview with a

U.S. Immigration and Customs Enforcement officer, Reyes-Gutierrez admitted that

he had re-entered the United States approximately one month after his deportation

in July. In reviewing Reyes-Gutierrez’s criminal history, the probation officer

reported that, in 1999, Reyes-Gutierrez had sustained a conviction for aggravated

assault on a law enforcement officer. In addition to his aggravated-assault

conviction, Reyes-Gutierrez had sustained two convictions for battery. The arrest

reports reflected that these convictions arose out of incidents of domestic violence

by Reyes-Gutierrez against Soriano. In connection with his more recent battery

conviction, the arrest report had stated that Reyes-Gutierrez partially had choked

Soriano with a bandana, and had threatened to kill her.

In reviewing Reyes-Gutierrez’s personal history, the probation officer

reported that Reyes-Gutierrez and Soriano had 4 children between the ages of 4

and 11, and that Reyes-Gutierrez provided the majority of the family’s financial

support. Soriano informed the U.S. Probation Office that Reyes-Gutierrez was a

“good father and husband,” and stated that she would like for Reyes-Gutierrez to

return to their residence and live with their family. The PSI reported that Reyes3
Gutierrez’s total offense level was 21, which, when combined with his criminal

history category of VI, produced a guideline range of 77 to 96 months’

imprisonment.

At sentencing, the court adopted the factual statements and guideline

applications in the PSI. Reyes-Gutierrez argued that, in light of the sentencing

factors set forth in 18 U.S.C. § 3553(a), the court should grant him a downward

variance. In mitigation of his sentence, Reyes-Gutierrez presented the statements

of his sister and his 11-year-old daughter. Reyes-Gutierrez’s sister and daughter

informed the court that Reyes-Gutierrez was the primary source of his family’s

financial support. In further mitigation of his sentence, Reyes-Gutierrez argued

that his criminal history, as a whole, did not demonstrate that he was a violent

person, and asserted that many of his offenses bore a connection to his problem

with alcohol consumption. He pointed out that, although he twice had been

convicted of battery against Soriano, Soriano had informed the U.S. Probation

Officer that she hoped that Reyes-Gutierrez would be able to resume residing with

their family. Reyes-Gutierrez emphasized that he had re-entered the United States

in order to provide for his family. He suggested that a 36-month term of

imprisonment would be sufficient to serve the statutory purposes of sentencing, as

3 years in prison constitutes a severe punishment.

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The court imposed a sentence of 77 months’ imprisonment, stating, “[T]he

[c]ourt is required to impose a sentence that is sufficient, but not greater than

necessary, after considering all the statutory factors. Your attorney has gone over

those, and I’ve considered all those factors.” The court further stated that, although

Reyes-Gutierrez’s guideline range was advisory, a downward variance was not

warranted under the § 3553(a) factors. The court next stated:

You have an extensive criminal history for the last ten years.

You’ve been committing crimes. Some less serious than others, of

course. But, as a result of that, you score the highest criminal history

category that the [G]uidelines have. You violated probation on

several occasions. All of this is by a person who is not supposed to be

in this country at all.

I’d be more impressed with the pleas with regard to family

membership if your last conviction hadn’t been battery upon your

wife. You’ve used a number of aliases, a number of different dates of

births. You have drug and alcohol issues. You’ve committed crimes

of violence, in my view, as exemplified by the two battery convictions

and the aggravated assault on a law enforcement officer that’s in your

history.

You were deported from the United States relatively recently.

You came back almost immediately. There’s no doubt in my mind

that you are going to do the same thing if given another opportunity.

After imposing sentence, the court asked the parties if there were any

objections to the sentence or the manner in which it was imposed. Reyes-Gutierrez

objected that his sentence constituted an abuse of the court’s discretion, and

asserted that a downward variance was warranted. The court overruled the

objection.

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II.

After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), the Guidelines are advisory in nature, and “a sentence may be reviewed for

procedural or substantive unreasonableness.” United States v. Hunt, 459 F.3d

1180, 1181-82 & n.3 (11th Cir. 2006). The reasonableness of a sentence is

reviewed under an abuse-of-discretion standard. United States v. Pugh, 515 F.3d

1179, 1189-90 (11th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51, 128

S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)).

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A sentence is procedurally unreasonable if the district court failed to

calculate or incorrectly calculated the guideline range, treated the Guidelines as

mandatory, failed to consider the factors set forth in 18 U.S.C. § 3553(a), selected

a sentence based on clearly erroneous facts, or failed to explain adequately the

chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Section 3553(a) provides

that district courts imposing a sentence must consider, inter alia:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need for the sentence

imposed—(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the offense;

 The government argues that Reyes-Gutierrez’s procedural-reasonableness arguments 2

are subject to plain-error review because he did not raise these arguments before the district

court. We do not decide whether plain-error review would apply in this case because, as

explained below, Reyes-Gutierrez’s sentence is procedurally reasonable under either an abuseof-discretion or plain-error standard of review.

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(B) to afford adequate deterrence to criminal conduct; (C) to protect

the public from further crimes of the defendant; and (D) to provide

the defendant with needed educational or vocational training, medical

care, or other correctional treatment in the most effective manner;

[and] (3) the kinds of sentences available.

18 U.S.C. § 3553(a)(1)-(3). The court also should consider the applicable

guideline range, any pertinent policy statements promulgated by the Sentencing

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

need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a)(4)-

(7). 

A district court “must adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.”

Gall, 552 U.S. at 50, 128 S.Ct. at 597. Specifically, § 3553(c) requires that, “[t]he

sentencing judge . . . set forth [sufficient reasoning] to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States, 551

U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007).

Procedural reasonableness does not require that a court recite or discuss each

of the § 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

2005) (addressing whether a defendant’s sentence was procedurally reasonable

under Booker); see also United States v. Bonilla, 463 F.3d 1176, 1182 (11th Cir.

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2006) (addressing whether the court adequately articulated the basis for the

defendant’s sentence, as required by 18 U.S.C. § 3553(c)(1)). Rather, it is

sufficient if a court merely states that, in selecting the defendant’s sentence, it has

considered the parties’ arguments and the § 3553(a) factors. Scott, 426 F.3d at

1329-30. On the other hand, a district court need not expressly mention § 3553(a)

where its reasoning demonstrates that it considered the § 3553(a) factors. See

United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007).

Here, the district court did not abuse its discretion by failing to adequately

explain the basis for its sentence. The court expressly stated that it had considered

“all” of the § 3553(a) factors in determining Reyes-Gutierrez’s sentence, and noted

that Reyes-Gutierrez had presented arguments as to the application of the § 3553(a)

factors. Moreover, by discussing the extent and nature of Reyes-Gutierrez’s

criminal history, as well as the fact that Reyes-Gutierrez had re-entered the United

States one month after he was deported, the court demonstrated its consideration of

several of the § 3553(a) factors—namely, the nature and circumstances of the

offense, the history and characteristics of the defendant, and the need for the

sentence to provide for adequate deterrence and to protect the public from future

crimes. In its reasoning, the court made clear that, although Reyes-Gutierrez had

familial obligations, a guideline sentence was warranted due to his past crimes and

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demonstrated disregard for the law. Accordingly, the court’s reasoning was

sufficient to provide for meaningful appellate review.

Moreover, while Reyes-Gutierrez asserts that the court failed to adequately

consider his mitigating arguments and evidence, the court expressly discussed

Reyes-Gutierrez’s emphasis on his relationship with his family, and concluded that

this argument was undermined by Reyes-Gutierrez’s two convictions for

committing battery against his wife. In addition, although the court did not

separately address Reyes-Gutierrez’s request for a 36-month sentence, the court

made clear that it rejected this proposed sentence due to the extent and nature of

Reyes-Gutierrez’s criminal history. Accordingly, Reyes-Gutierrez’s argument in

this regard lacks merit.

III.

“[A] sentence may be substantively unreasonable, regardless of the

procedure used.” Hunt, 459 F.3d at 1182 n.3. The party challenging the sentence

“bears the burden of establishing that the sentence is unreasonable in the light of

[the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). “[T]here is a range of reasonable sentences from which

the district court may choose,” and, when the court imposes a sentence that is

within the guideline range, we ordinarily expect that sentence to be reasonable. Id.

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A district court possesses “considerable discretion” in weighing the § 3553(a)

factors, and we defer to the district court’s judgment unless it made “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.” Pugh,

515 F.3d at 1191 (quotation omitted).

Reyes-Gutierrez has failed to meet his burden of establishing that his 77-

month sentence is substantively unreasonable. This sentence was within ReyesGutierrez’s guideline range, and well below the applicable statutory-maximum

term of ten years’ imprisonment. See 8 U.S.C. § 1326(b)(1). While ReyesGutierrez emphasizes his familial ties and the length of his proposed 36-month

sentence, and asserts that there were mitigating circumstances surrounding his

criminal history, these arguments do not demonstrate that his sentence is

substantively unreasonable. As the district court correctly noted, ReyesGutierrez’s argument that his familial ties warranted a downward variance was

undermined by the fact that he had sustained two convictions for battery against his

wife. In this regard, it bears noting that the facts underlying Reyes-Gutierrez’s

second battery conviction indicated that this battery was particularly violent, as the

offense involved choking and a death threat. In addition, this battery conviction

occurred recently, in November 2008, only several months after Reyes-Gutierrez

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was deported from the United States in July 2008. Moreover, Reyes-Gutierrez’s

re-entry into the United States only one month after he was deported demonstrated

his disregard for the immigration laws. In light of these facts, the district court did

not commit a clear error of judgment in concluding that a sentence at the low end

of Reyes-Gutierrez’s guideline range was warranted. Accordingly, ReyesGutierrez’s has failed to demonstrate that his 77-month sentence is outside the

range of reasonable sentences. As a result, the district court did not abuse its

discretion by imposing a 77-month sentence.

AFFIRMED.

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