[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14079

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

J. SANTOS MORENO-SALAZAR, 

a.k.a. Oscar Gutierrez, 

a.k.a. Santos Moreno, 

a.k.a. Eduardo Moreno-Salazar, 

Defendant-Appellant.

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____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:21-cr-00087-TFM-N-1

____________________

Before ROSENBAUM, GRANT, and HULL, Circuit Judges.

PER CURIAM:

After pleading guilty, J. Santos Moreno-Salazar appeals his 

36-month sentence for illegal reentry. Moreno1 argues that his 

sentence is substantively unreasonable. After careful review, we 

affirm.

I. FACTUAL BACKGROUND 

A. Offense Conduct2

On April 17, 2021, Moreno was arrested by the Foley, 

Alabama, Police Department and booked for driving under the 

influence of alcohol (“DUI”). Moreno told the police his name 

was Oscar Gutierrez, and he was booked under this alias. While 

he was in custody, Immigration and Customs Enforcement 

(“ICE”) ran Moreno’s fingerprints in criminal and immigration 

1 In his brief on appeal, the appellant shortens his full name to “Moreno.” 

Accordingly, we do the same.

2 The description of Moreno’s offense conduct is drawn from the factual 

proffer contained in Moreno’s plea agreement. 

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21-14079 Opinion of the Court 3

databases, which revealed his true identity and returned a 

“removed alien” alert along with his criminal history. 

The records showed that Moreno was removed to Mexico 

on October 9, 2008, and on April 16, 2013. Prior to the 2013 

removal, Moreno was arrested in Florida for the crime of “hit and 

run” and later convicted of leaving the scene of a crash involving 

personal injury. 

As of April 2021, Moreno had not filed a claim or petition 

that would have allowed him to enter or remain in the United 

States legally. In April 2021, Moreno did not have permission 

from the U.S. Attorney General or the Secretary of the 

Department of Homeland Security to be found voluntarily in the 

United States. 

 As to Moreno’s April 2021 DUI charge, an individual called 

the police after observing Moreno’s car swerving into oncoming 

traffic. The responding officer observed that Moreno was 

unsteady on his feet and slurred his speech. Moreno denied he 

had been drinking and refused to take a breathalyzer test or to 

perform field sobriety tests. The charges were later nolle prossed. 

B. Indictment and Guilty Plea

In May 2021, an indictment charged Moreno with one 

count of illegal reentry, in violation of 8 U.S.C. § 1326(a), (b)(1). 

 Pursuant to a plea agreement, Moreno pled guilty. The 

district court accepted his plea and adjudicated him guilty of 

illegal reentry. 

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C. Presentence Investigation Report (“PSI”) 

 Moreno’s PSI assigned him a base offense level of 8. His 

base offense level of 8 was: (1) increased by eight levels because 

Moreno committed a felony before the first time he was ordered 

removed; and (2) decreased by three levels for acceptance of 

responsibility, resulting in a total offense level of 13. 

The PSI assigned three criminal history points to Moreno’s 

2011 Florida conviction for leaving the scene of a crash involving 

personal injury. It listed seven other adult convictions but did not 

assign criminal history points to those convictions because they 

were more than 15 years old. See U.S.S.G. § 4A1.2(e)(3). Those 

seven convictions were: (1) four DUI convictions, (2) disorderly 

intoxication, (3) using a firearm while under the influence of 

alcohol, and (4) battery–touch or strike. Moreno’s three criminal 

history points resulted in a criminal history category of II. 

Moreno’s total offense level of 13 and criminal history 

category of II yielded an advisory guidelines range of 15 to 21 

months. The statutory maximum sentence was ten years. 

The PSI stated that Moreno reported abusing alcohol in the 

past and stated that he had not consumed alcohol in ten years. 

He denied that he was intoxicated at the time of his arrest on 

April 17, 2021. He stated that his stomach was hurting him, 

which caused him to swerve while driving. 

 The PSI highlighted Moreno’s criminal history category as 

a factor that might warrant departure under U.S.S.G. 

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§ 4A1.3(a)(1), noting that the court could consider “whether or 

not the defendant’s criminal history category adequately reflects

the defendant’s past criminal conduct or the likelihood that the 

defendant will commit other crimes.” 

 Moreno did not object to the PSI. 

D. Sentencing Hearing 

 At sentencing, the district court adopted the PSI’s 

calculation of Moreno’s 15-to-21–month advisory guidelines

range. The district court stated that it planned to impose an 

upward departure because of Moreno’s repeated criminal history 

of driving under the influence, including the driving under the 

influence charge that brought him into custody this time.3 It 

stated that those convictions, as well as the other convictions that 

did not incur criminal history points, were “indicative that 

[Moreno’s] overall conduct and demeanor while in this country 

unlawfully is beyond just a person who is here merely trying to 

make a living.” 

 Moreno argued that, aside from the most recent charge, 

those convictions occurred “quite a while back,” which was why 

the guidelines range came out where it did. 

3 Although the district court stated that it was imposing an upward 

departure, its other comments at sentencing and the parties’ substantive 

reasonableness arguments on appeal efffectively treat the 36-month sentence 

as an upward variance, and we will refer to it as such.

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 Next, the district court gave Moreno the chance to 

allocute. Moreno apologized to the court and to the government 

for being in the country illegally. Moreno stated that he was 

ashamed for having lied, and he did so because it was difficult in 

Mexico and because his father lives in the United States. Moreno

stated that he made mistakes when he was younger. He 

endangered his life and the lives of others, and he was remorseful 

for that. 

Moreno stated that he had not been drinking when he was 

arrested on April 17, 2021. That day, he had eaten spicy food and 

was driving home with terrible heartburn and was not paying 

attention or holding the steering wheel with both hands as he 

should have been. After his arrest, the police tested his alcohol 

level at the jail and the result was zero. Moreno stated that it had 

been more than eleven years since he last took a sip of alcohol. 

The district court stated that, even if Moreno was not 

under the influence at the time of his most recent arrest, the 

circumstances still indicated that he voluntarily chose to drive 

even though he could not do so safely. It stated that it had no 

problem with the application of the guidelines in a typical case. 

But Moreno’s case was unique because he had a number of 

convictions for driving under the influence, which was also the

reason he was stopped on this occasion. Driving under the 

influence presented a serious danger to the public. And on this 

latest occasion Moreno again had driven “in such a way on a rainy 

night where somebody could have been hurt.” The district court 

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determined that a within-guidelines sentence would not be 

appropriate because Moreno had posed a danger to the 

community many times, including in the most recent incident. 

 The district court sentenced Moreno to a term of 36 

months’ imprisonment. It found that the guidelines range was 

not appropriate to the facts and circumstances of this case and 

would not provide a reasonable sentence. It further found that 

the 36-month sentence addressed the seriousness of the offense 

and the sentencing objectives of punishment, deterrence, and 

incapacitation. 

 Moreno objected that 36 months was more than twice the 

low end of the guidelines and stated his belief that it was an abuse 

of discretion to impose a sentence so far above the guidelines 

range, especially after the court had heard his version of what 

happened regarding his most recent arrest. 

The district court stated that Moreno had a lengthy history 

of driving under the influence and that, at a minimum, he was 

driving recklessly on the 2021 occasion. It determined that the 

sentence was appropriate. 

This is Moreno’s appeal.

II. DISCUSSION 

Moreno argues that his 36-month sentence is substantively 

unreasonable. We review the reasonableness of a sentence under 

a deferential abuse-of-discretion standard employing a two-step 

process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 

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2008). First, we examine whether the district court committed 

any significant procedural error. Id. Because Moreno claims no 

procedural error, we move to the second step of determining 

whether his sentence is substantively reasonable in light of the 

18 U.S.C. § 3553(a) factors and the totality of the circumstances.4

 

Id. The party challenging the sentence—here, Moreno—carries 

the burden of showing that the sentence is substantively 

unreasonable. Id. at 1189.

This Court will vacate a sentence on substantive 

reasonableness grounds only 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.” United States v. Irey, 612 F.3d 

1160, 1190 (11th Cir. 2010) (en banc) (quotation marks omitted). 

A district court may attach great weight to one § 3553(a) factor 

over others, and the weight it attaches to any specific factor is 

committed to its sound discretion. United States v. RosalesBruno, 789 F.3d 1249, 1254 (11th Cir. 2015). 

4 The § 3553(a) factors include: (1) the nature and circumstances of the 

offense and the history and characteristics of the defendant; (2) the need to 

reflect the seriousness of the offense, to promote respect for the law, and to 

provide just punishment for the offense; (3) the need for deterrence; (4) the 

need to protect the public from the defendant’s future crimes; (5) the 

advisory guidelines range; and (6) the need to avoid unwarranted sentence 

disparities. 18 U.S.C. § 3553(a).

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A major upward variance from the advisory guideline 

range requires a justification that is “sufficiently compelling to 

support the degree of the variance.” Irey, 612 F.3d at 1196

(quotation marks omitted). This Court has upheld large upward 

variances based solely on the defendant’s extensive criminal 

history. See United States v. Osorio-Moreno, 814 F.3d 1282, 1288 

(11th Cir. 2016) (holding that a 120-month sentence was 

reasonable because the defendant had 20 prior convictions and 

the guidelines range of 51-63 months understated his criminal 

history). Further, an upward variance well below the statutory 

maximum sentence indicates that a sentence is reasonable. 

United States v. Riley, 995 F.3d 1272, 1278 (11th Cir. 2021). 

After careful review, we cannot say that Moreno’s 

36-month sentence is substantively unreasonable. Although the 

district court emphasized Moreno-Salazar’s criminal history, it 

was entitled to place more weight on this factor than the 

Guidelines did. See Osorio-Moreno, 814 F.3d at 1287. Moreno 

had seven convictions, including four DUI convictions, that were 

not factored into his criminal history category, and his present 

offense arose after he was charged with another DUI. Although 

Moreno denied drinking on that occasion, he did not object to the 

PSI’s description of his April 2021 arrest, including that he was 

seen swerving into oncoming traffic. The district court 

considered Moreno’s version of events surrounding his April 2021 

arrest and found that, even if Moreno was not drunk, his reckless 

driving once again supported the sentence. 

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The district court also acknowledged Moreno’s objection 

that most of his convictions occurred more than 15 years ago, but

it found the convictions still indicated a pattern of dangerous 

behavior. The court acted within its wide discretion in finding 

that the guidelines range understated Moreno’s criminal history

and his danger to the public. Finally, the district court’s upward 

variance was well below the ten-year statutory maximum, which 

further indicates reasonableness. See Riley, 995 F.3d at 1278.

Moreno has not shown that the district court’s sentence 

was “outside the range of reasonable sentences dictated by the 

facts of the case” or that its upward variance lacked a “sufficiently 

compelling” justification. See Irey, 612 F.3d at 1190, 1196. 

Accordingly, we affirm.

AFFIRMED. 

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