FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JANUARY 23, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13796

Non-Argument Calendar

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D. C. Docket No. 08-10002-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GIAMNY SANTOS CHAVEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 23, 2009)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
Giamny Santos Chavez appeals the 18-month sentence imposed after he pled

guilty to knowingly failing to obey the order of a federal law enforcement officer

to heave to the vessel of which he was the master or operator, in violation of 18

U.S.C. § 2237(a)(1). Santos Chavez argues that the sentence, an upward variance

from the zero-to-six-month guideline imprisonment range, was unreasonable for

being greater than necessary. For the reasons set forth below, we affirm

I.

In a presentence investigation report (“PSI”), a probation officer explained

that, on December 26, 2007, Santos Chavez was operating a vessel, traveling away

from Cuba and toward the United States at approximately 1:30 a.m., without

illuminated navigation lights. A Coast Guard boat closed within 40 feet of the

vessel and, activating its law enforcement and emergency lights, gave commands

in English and Spanish for Santos Chavez to stop the vessel. Santos Chavez

looked toward the Coast Guard boat, but increased his speed. In attempts to evade

the Coast Guard boat, Santos Chavez both “swerved drastically in the direction of”

the Coast Guard boat, forcing it to swerve to avoid being hit, and swerved in front

of the bow of a large tanker operating in the area. After an approximately hourlong chase, the vessel’s engines failed and Coast Guard officers were able to board

the vessel. Santos Chavez was the only passenger. He indicated that he did not

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know the name of the owner of the vessel. He indicated that he had been fishing.

The Coast Guard officers noted that, while two fishing poles were onboard, they

were not rigged for fishing and there was no bait, tackle box, or ice onboard. He

indicated that he had not stopped because he was not able to turn off the engines.

Santos Chavez was arrested.

At a sentencing hearing, Santos Chavez’s counsel asked for a sentence of

time served, or three months, asserting that Santos Chavez had no criminal history

and had been productive since arriving in the United States, having worked as a

general laborer, fisherman, and handyman. Santos Chavez apologized to the

district court and the Coast Guard and asked that the district court take into account

his repentance.

The district court noted that Santos Chavez’s total offense level was eight,

criminal history category was I, and guideline imprisonment range was zero to six

months. The district court cited the 18 U.S.C. § 3553(a) factor dealing with the

nature and characteristics of Santos Chavez and noted that he only had been in the

United States for less than a year when he committed the crime. The district court

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also cited the § 3553(a) factor dealing with the nature and circumstances of the

offense and reviewed the facts contained in the PSI, including: the erratic and

 Specifically, the district court acknowledged that Santos Chavez immigrated to the 1

United States on July 24, 2007. 

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dangerous manner in which Santos Chavez was operating the boat in order to avoid

capture, which caused the Coast Guard boat to swerve to avoid being hit; that

Santos Chavez swerved in front of a tanker to avoid capture; that the chase lasted

one hour; that Santos Chavez slowed down only because of engine failure; that he

lied by stating that he was only fishing; that he denied going into Cuban waters

even though he was seen in those waters; and that he denied being told in Spanish

to stop his boat. The district court then stated that it also had considered the PSI,

the statements of the parties, and the remaining statutory factors, including the

need for the sentence to reflect the seriousness of the crime, promote respect for

the law, provide just punishment, promote adequate deterrence, and protect the

public from further crimes by Santos Chavez. The district court sentenced Santos

Chavez to 18 months imprisonment. Santos Chavez objects to the upward

variance.

II.

After the Supreme Court’s decision in United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court first must

correctly calculate the guideline imprisonment range and then must treat that range

as advisory and impose a reasonable sentence. United States v. Talley, 431 F.3d

784, 786 (11th Cir. 2005). In doing so, the sentencing court may exercise its

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discretion and grant a variance in order to impose a reasonable sentence outside the

sentencing guidelines range. See United States v. Irizarry, 458 F.3d 1208, 1212

(11th Cir. 2006). Specifically, the district court must impose a sentence that is both

procedurally and substantively reasonable. United States v. Hunt, 459 F.3d 1180,

1182 n.3 (11th Cir. 2006); Gall v. United States, 552 U.S. __, 128 S.Ct. 586, 597,

169 L.Ed.2d 445 (2007). The reasonableness of a sentence is reviewed under an

abuse-of-discretion standard. Gall, 552 U.S. at __, 128 S.Ct. at 597. “[T]he party

who challenges the sentence bears the burden of establishing that the sentence is

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

Per the Supreme Court, a sentence may be procedurally unreasonable if the

district court “fail[s] to calculate (or improperly calculat[es]) the Guidelines range,

treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors,

select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately

explain the chosen sentence - including an explanation for any deviation from the

Guidelines range.” Gall, 552 U.S. at __, 128 S.Ct. at 597. Also per the Supreme

Court, review for substantive reasonableness involves inquiring whether the

statutory factors in § 3553(a) support the sentence in question. Gall, 552 U.S. at

__, 128 S.Ct. at 598-99. Pursuant to § 3553(a), the sentencing court shall impose a

sentence “sufficient, but not greater than necessary” to comply with the purposes

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of sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the

offense, promoting respect for the law, providing just punishment for the offense,

deterring criminal conduct, protecting the public from future criminal conduct by

the defendant, and providing the defendant with needed educational or vocational

training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the

sentencing court to consider certain factors, including the nature and circumstances

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

avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct See 18 U.S.C. § 3553(a)(1), (6).

III.

The district court imposed a reasonable sentence. See Talley, 431 F.3d at

786. First, Santos Chavez has not argued, and the record otherwise does not

demonstrate, that the district court imposed a procedurally unreasonable sentence.

See Hunt, 459 F.3d at 1182 n.3. Also, the record demonstrates that the § 3553(a)

factors supported the sentence imposed, such that he district court imposed a

substantively reasonable sentence. See Hunt, 459 F.3d at 1182 n.3; Gall, 552 U.S.

at __, 128 S.Ct. at 598-99. Specifically, it does not appear that the upward

variance was greater than necessary, given the seriousness of Santos Chavez’s

offense, during which he operated his boat erratically and dangerously, even

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forcing the Coast Guard boat to swerve to avoid a collision, and given Santos

Chavez’s display of a lack of respect for the law, namely by fleeing for an hour and

only stopping because the engines on the vessel he operated failed and lying to law

enforcement about the circumstances of the offense. See 18 U.S.C. § 3553(a)(2).

Accordingly, we affirm.

AFFIRMED.

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