[DO NOT PUBLISH] 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-13029 

Non-Argument Calendar

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D.C. Docket No. 1:12-cr-00003-AT-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

VALERIANO CRUZ-MENDOZA,

a.k.a. Valeriano Cruz, 

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Georgia

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(February 8, 2013)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM: 

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Valeriano Cruz-Mendoza appeals his below-guidelines 32-month sentence, 

which the district court imposed after he pled guilty to illegally reentering the 

United States after removal. Cruz-Mendoza argues that his sentence was 

substantively unreasonable. He argues that there is no empirical evidence to 

support the severe 16-level guideline enhancement under § 2L1.2(b)(1)(A)(ii), for 

illegal reentry following a felony conviction. In addition, he asserts that the fact 

that prior convictions drive up both the offense level and the criminal history score 

under the guidelines constitutes impermissible double counting. Finally, CruzMendoza argues that the court gave insufficient weight to the facts and 

circumstances of his case, and abused its discretion by failing to fashion a more 

lenient sentence. 

We review the reasonableness of a defendant’s sentence under a deferential 

abuse-of-discretion standard, Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 

591, 169 L.Ed.2d 445 (2007), and the party challenging the sentence bears the 

burden of demonstrating that it is unreasonable, United States v. Talley, 431 F.3d 

784, 788 (11th Cir. 2005). The district court must impose a sentence that is 

sufficient, but not greater than necessary, to comply with the purposes of 

sentencing listed in § 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 needed educational or vocational training, 

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or medical care. 18 U.S.C. § 3553(a)(2). The district court must also consider the 

nature and circumstances of the offense, the defendant’s history and 

characteristics, the kinds of sentences available, the applicable Guidelines range, 

pertinent policy statements from the Sentencing Commission, the need to avoid 

unwarranted sentencing disparities, and the need for restitution. Id. § 3553(a)(1), 

(3)-(7).

Considering these standards, we affirm. Cruz-Mendoza’s arguments sound 

solely in substantive reasonableness. He does not argue that the district court 

failed to properly calculate his Guidelines range, treated the Guidelines as 

mandatory, failed to consider the § 3553(a) factors, imposed his sentence based 

upon clearly erroneous facts, or failed to adequately explain his sentence. Rather, 

he argues that, in light of the 16 offense-level-enhancement and a variety of 

mitigating factors, his sentence exceeds that which is necessary to achieve the 

appropriate sentencing objectives. 

Cruz-Mendoza’s argument regarding the lack of empirical evidence 

supporting the 16 offense-level-enhancement under § 2L1.2(b)(1)(A)(ii) is raised

for the first time on appeal and we find no error, plain or otherwise. Even if CruzMendoza is correct that the enhancement is not supported by an empirical basis,

this fact alone would not invalidate its application or otherwise render his sentence 

unreasonable. See United States v. Snipes, 611 F.3d 855, 870 (11th Cir. 2010) 

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(addressing U.S.S.G. § 2T1.1, and holding that the absence of empirical evidence 

is not an independent ground that requires the wholesale invalidation of a 

guideline). Rather, the district court was permitted, but not required, to consider 

any lack of empirical evidence as a relevant factor when imposing CruzMendoza’s sentence. See Snipes, 611 F.3d at 870. Thus, the district court did not 

err in applying the § 2L1.2(b)(1)(A)(ii) enhancement.

Nor did the district court’s application of the 16 offense-level-enhancement 

impermissibly double count Cruz-Mendoza’s criminal history. See United States 

v. Adeleke, 968 F.2d 1159, 1160-61 (11th Cir. 1992). Double counting is permitted 

if the Sentencing Commission intended that result and the two guidelines sections 

serve different purposes. Id. at 1161. Here, criminal history categories punish 

recidivists, and § 2L1.2(b)(1)(A) deters aliens from reentering the country after 

committing felonies. Id. Thus, double counting was permitted in this case.

Finally, we must reject Cruz-Mendoza’s argument that that his sentence is 

substantively unreasonable. As the district court found, Cruz-Mendoza’s criminal 

history involved a violent criminal act, he was a recidivist, and he was on “very 

clear notice” of the penalties he might face for returning to this country. The court 

reasonably found that a 32-month sentence would sufficiently address 

demonstrated needs for deterrence and respect for the law. See 18 U.S.C. 

§ 3553(a)(1), (2)(A)-(B); (R1-32 at 24-25). Moreover, the 32-month sentence fell 

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below the bottom of Cruz-Mendoza’s Guidelines range and appreciably below the 

20-year statutory maximum, further suggesting its substantive reasonableness. See

8 U.S.C. § 1326(b)(2) (establishing a 20-year maximum sentence of imprisonment 

for an alien that illegally reenters the United States after having been removed 

subsequent to a conviction for an aggravated felony). Cruz-Mendoza’s 32-month 

sentence fell within the range of reasonable sentences that the district court could

have imposed and we cannot say the court’s conclusion that Cruz-Mendoza’s 

sentence was “sufficient,” but “not greater than necessary to penalize for the 

offense involved here” was erroneous.

AFFIRMED. 

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