[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-12518

Non-Argument Calendar

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D.C. Docket No. 1:19-cr-20112-FAM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JESUS MANUEL VASQUEZ ALVAREZ, 

a.k.a. Angel Jose Santiago Rodriguez, 

a.k.a. Eduardo Felix Perez, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(March 22, 2021)

Before WILSON, ANDERSON, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

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Defendant Jesus Manuel Vasquez Alvarez appeals his 60-month sentence for 

illegal reentry into the United States after having been deported. He argues that his 

above-guideline sentence was substantively unreasonable because the district court 

gave undue weight to his prior criminal history. After careful consideration, 

however, we discern no abuse of discretion by the district court. Accordingly, we 

affirm Defendant’s sentence.

I. BACKGROUND

Defendant is a native and citizen of the Dominican Republic. After illegally 

entering the United States and then proceeding to commit felony offenses, 

Defendant was deported in August 2014. But Defendant was not gone for long. 

As a result of Defendant’s arrest in Florida for drug trafficking and related offenses 

in 2018, immigration officials learned that Defendant had illegally entered the 

United States once again. In a sworn post-Miranda1 statement, Defendant 

admitted that he had illegally reentered the United States after being removed. 

Accordingly, Defendant was charged with one count of illegal reentry after 

removal, in violation of 8 U.S.C. § 1326(a), (b)(2). Defendant pled guilty without 

a plea agreement. 

A probation officer then prepared a presentence investigation report 

(“PSR”), calculating a total offense level of 15 and a criminal history category of 

1

 Miranda v. Arizona, 384 U.S. 436 (1966).

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III, which calculations resulted in an advisory guideline range of 24 to 30 months’ 

imprisonment, with a statutory maximum of 20 years. As relevant here, 

Defendant’s total offense level included a six-level increase under U.S.S.G. 

§ 2L1.2(b)(2)(6)—because, prior to being removed, Defendant had received a 

sentence exceeding one year and one month for a felony conviction—and a fourlevel increase under U.S.S.G. § 2L1.2(b)(3)(D)—because, after being removed, he 

had sustained another felony conviction. In scoring Defendant’s criminal history, 

the probation officer assigned three points to a 2010 conviction, under U.S.S.G. 

§ 4A1.1(a), and one point each for convictions Defendant sustained in 2012 and 

2018, under U.S.S.G. § 4A1.1(c). 

As to these prior convictions, Defendant was arrested in 2010 in 

Pennsylvania under the alias “Angel Rodriguez” and charged with one count of 

possession with intent to deliver heroin, one count of intent to possess a controlled 

substance by an unregistered person, and one count of using or possessing drug 

paraphernalia. Defendant pled guilty to the first count and the remaining counts 

were nolle prossed. Although he received a sentence of 11.5 to 23 months’ 

imprisonment and 3 years’ probation, he was released from jail only one month 

after his sentencing hearing,

2 and his probation was terminated 18 months later. 

2

 Defendant had been in jail for 14 months prior to the sentencing hearing. 

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Defendant was next convicted in 2012 for unlawfully using a social security 

number to obtain a Pennsylvania driver’s license. Defendant received one day in 

jail and three years’ supervised release. But in 2014, after Defendant unlawfully 

left the state and associated with convicted felons, his probation was revoked and 

he was removed from the United States. 

Finally, in 2018, Defendant was arrested in Florida under the alias “Eduardo 

Felix Perez” and convicted for conspiracy to traffic cocaine, conspiracy to commit 

money laundering, and attempted cocaine trafficking. The State dropped 

additional charges for cocaine trafficking, conspiring to traffic cocaine, and money 

laundering. Defendant received a sentence of only five years’ probation for these 

offenses and, shortly thereafter, he was remanded to federal custody for the present 

offense. 

At sentencing, Defendant confirmed that he had no objections to the PSR. 

Accordingly, the district court adopted the PSR’s factual statements and advisory 

guideline calculation of 24–30 months’ imprisonment. While the Government did 

not make a specific sentencing request, it asked the court not to vary downward 

and stated that it did not oppose a sentence at the bottom of the guideline range. 

Defense counsel, by contrast, asked for a six-month downward variance from the 

bottom of the guideline range to account for the time he had served while on an 

immigration hold after his arrest in 2018. Further, defense counsel noted that 

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Defendant would be deported after serving his sentence and that he would not 

return to the United States because he wanted to be with his three children in the 

Dominican Republic. 

Noting the existence of “so many aggravating factors,” the district court 

expressed surprise that Defendant would request a downward variance. The court 

explained that although it had sympathy for people who had come to the country to 

do honest work, Defendant was not one of those people, as he had declined to 

pursue legal work and had opted instead to commit drug crimes. The court further 

acknowledged that people who were illegally in the country might sometimes

commit low-level offenses in order to be able to get to and from work, stating: 

“[T]he thing is, [if] you come here illegally, [and] if you’re working and you’re 

driving with a suspended license or a fake license and you get stopped, I can 

understand that. I really can, you know.” But the court contrasted those types of 

offenses with the serious drug crimes Defendant had committed, which the court 

found inexcusable: “But you go and you traffic in cocaine or heroin and you get 

arrested, why shouldn’t we give someone more time?” 

In conclusion, the court stated that Defendant’s convictions for cocaine and 

heroin trafficking, as well as his violations of supervised release, showed a serious 

disrespect for the law warranting a higher sentence in the present case. The court 

also noted that the extremely short sentences Defendant had received for his prior 

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convictions—which short sentences yielded a lower offense level than would have 

resulted had Defendant received longer sentences—appeared to have been the 

result of “very busy Philadelphia courts” and an “overwhelmed State court 

system.” When defense counsel objected that the guidelines already accounted for 

Defendant’s criminal history, the court disagreed, explaining: “The issue is, do 

they take them into account sufficiently?” 

In rendering its ultimate sentence, the court explained that Defendant’s 

criminal history revealed a need to impose a sentence that would protect the public

and promote respect for the law. For that reason, the court upwardly varied from 

the 30 months called for by the upper end of the advisory guidelines range and 

imposed a sentence that was 2 1/2 years greater: that is, a 60-month sentence. 

After the court imposed sentence, defense counsel objected that the sentence was 

substantively unreasonable. 

II. DISCUSSION

On appeal, Defendant argues that the 60-month prison sentence imposed by

the district court was an unreasonable sentence. We review the substantive 

reasonableness of a sentence for an abuse of discretion in light of the totality of the 

circumstances and the 18 U.S.C. § 3553(a) factors. United States v. Gomez, 955 

F.3d 1250, 1255 (11th Cir. 2020). “A district court abuses its discretion when it 

(1) fails to afford consideration to relevant factors that were due significant weight, 

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(2) gives significant weight to an improper or irrelevant factor, or (3) commits a 

clear error of judgment in considering the proper factors” by, for example, 

“balanc[ing] them unreasonably.” United States v. Irey, 612 F.3d 1160, 1189 (11th 

Cir. 2010) (en banc) (quotation marks omitted). “Even if we disagree with how the 

district court weighed the sentencing factors, we will only reverse a procedurally 

proper sentence 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.” Gomez, 955 F.3d at 1257 (quotation marks omitted). 

The § 3553(a) factors include the nature and circumstances of the offense, 

the history and characteristics of the defendant, the kinds of sentences available, 

the advisory guideline range, pertinent policy statements issued by the Sentencing 

Commission, and the need to avoid unwarranted sentence disparities. 18 U.S.C. 

§ 3553(a). “The district court must impose a sentence ‘sufficient, but not greater 

than necessary to comply with the purposes’ listed in § 3553(a)(2), such as the 

need to reflect the seriousness of the offense, promote respect for the law, provide 

just punishment for the offense, deter criminal conduct and protect the public from 

the defendant’s future criminal conduct.” United States v. Nagel, 835 F.3d 1371, 

1376 (11th Cir. 2016) (quoting 18 U.S.C. § 3553(a)). The weight given to the 

§ 3553(a) factors “is a matter committed to the sound discretion of the district 

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court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotation 

marks omitted). Accordingly, “[w]e will not second-guess” a court’s decision to 

give greater weight to certain factors rather than others “as long as the sentence 

ultimately imposed is reasonable in light of all the circumstances presented.” 

Gomez, 955 F.3d at 1257 (quotation marks omitted).

As noted above, the district court’s ultimate sentence represented an upward 

variance from the advisory guideline range. Nonetheless, “[w]e do not presume 

that a sentence outside the guideline range is unreasonable and [we] must give due 

deference to the district court’s decision that the § 3553(a) factors, as a whole, 

justify the extent of the variance.” United States v. Goldman, 953 F.3d 1213, 1222 

(11th Cir. 2020). Accordingly, a court need not identify “extraordinary 

circumstances” to justify a sentence outside the guideline range, United States v. 

Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir. 2016), and “rigid mathematical

formulas and proportionality tests cannot be used” to assess the reasonableness of a 

variance, Irey, 612 F.3d at 1186. The sentencing court need only “give serious 

consideration to the extent of any departure from the guidelines” and “offer 

sufficient justifications for its conclusion that an unusually harsh or light sentence 

is appropriate.” Osorio-Moreno, 814 F.3d at 1287 (quotation marks omitted). 

Here, we are not left with a “definite and firm conviction” that the district 

court acted unreasonably in concluding that a 60-month sentence of imprisonment 

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was necessary to protect the public and promote respect for the law. First, contrary 

to Defendant’s argument, the court did not improperly “double count” his criminal 

history when it relied on that history both in calculating the guideline range and in 

imposing an upward variance.3

 True, in calculating Defendant’s advisory 

guideline range, offense-level points were added because he had sustained felony 

convictions both before and after being removed from the United States, and 

criminal-history points were likewise awarded based on these prior convictions. 

See U.S.S.G. § 2L1.2(b)(2)(C) (six-level increase for felony convictions prior to 

first removal for which the sentence imposed exceeded one year and one month); 

id. § 2L1.2(b)(3)(D) (four-level increase for other felony convictions after 

removal); id. § 4A1.1(a) (three criminal-history points for prison sentences 

exceeding one year and one month); id. § 4A1.1(c) (one criminal-history point for 

other sentences not already counted). 

Significantly, though, the degree of these enhancements does not account for 

the nature of the offenses that were the subject of the convictions. Instead, as the 

3

 We note that Defendant does not raise a typical “double counting” issue, which arises when a 

district court counts the same aspect of a defendant’s criminal history twice in calculating the 

advisory guideline range. See United States v. Dudley, 463 F.3d 1221, 1226–27 (11th Cir. 2006) 

(“Impermissible double counting occurs only when one part of the Guidelines is applied to 

increase a defendant’s punishment on account of a kind of harm that has already been fully 

accounted for by application of another part of the Guidelines.” (quotation marks omitted)). 

Rather, Defendant contends that, because his prior convictions had been used to calculate the 

guideline range, the court acted unreasonably in varying upward from the guideline range based 

on the nature of the convictions at issue. 

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Commission has acknowledged, these enhancements gauge the prior offense’s 

seriousness solely on the length of the sentence imposed for these offenses. 

Specifically, although U.S.S.G. § 2L1.2 previously awarded offense-level points 

“based on the nature of a defendant’s [prior] conviction,” the Sentencing 

Commission found that the guideline was too difficult to administer. U.S.S.G. 

Supp. to App. C, at 155 (Nov. 1, 2016) (reproducing Amendment 802). 

Accordingly, it amended § 2L1.2, eliminating the need to assess the nature of prior 

convictions by adopting “a much simpler sentence-imposed model” that

“determined [the level of sentencing enhancement] by the length of the sentence 

imposed for the prior offense, not by the type of offense for which the defendant 

had been convicted.” Id. Similarly, the Sentencing Commission sought to 

“minimize problems with imperfect measures of past crime seriousness” in 

calculating criminal-history points under U.S.S.G. § 4A1.1 by ensuring that 

“criminal history categories are based on the maximum term imposed in previous 

sentences rather than on other measures, such as whether the conviction was 

designated a felony or misdemeanor.” U.S.S.G. § 4A1.1, comment (backg’d.).

The Sentencing Commission based U.S.S.G. § 2L1.2(b)(2)’s “sentencelength benchmarks” on its “data analysis of offenders’ prior felony convictions

[which] showed that the more serious types of offenses, such as drug-trafficking 

offenses, . . . tended to receive sentences of imprisonment of two years or more.” 

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U.S.S.G. Supp. to App. C, at 157 (Nov. 1, 2016) (reproducing Amendment 802). 

And the Commission commented that its length-of-sentence approach to § 2L1.2, 

which assumed that “the length of sentence imposed by a sentencing court is a 

strong indicator of the court’s assessment of the seriousness of the predicate 

offense,” was “consistent with how criminal history is generally scored in . . . 

Chapter Four.” Id. In short, the length of the sentence acts as a proxy for the 

seriousness of the underlying offense.

In varying upward, the district court concluded that, in the particular case 

before it, the very short sentences for Defendant’s drug trafficking convictions—

less than two years for heroin trafficking and only probation for cocaine 

trafficking—were not an accurate indicator of the seriousness of Defendant’s prior 

offenses. Instead, the court noted, these sentences appeared to be the result of 

“very busy” and “overwhelmed” state court systems, rather than fair measures of 

the seriousness of the past criminal conduct. 

In essence, Defendant is arguing that, in arriving at a reasonable sentence, a 

district court cannot consider the seriousness of the defendant’s prior convictions. 

Yet, nothing in the § 3553(a) factors forbids such an assessment. Indeed, the 

guidance provided in § 3553(a)(2) calls for a sentence that reflects the need to 

deter criminal conduct and protect the public from future criminal conduct. Nagel, 

835 F.3d at 1376; see Osorio-Moreno, 814 F.3d at 1286, 1288 (holding that an 

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upward variance from a 51-to-63-month guideline range to the statutory maximum 

of 120 months was substantively reasonable in a sentence for illegal reentry where 

the court found that the defendant was a danger to the public based on his 

extensive criminal history); see also United States v. Williams, 526 F.3d 1312, 

1324 (11th Cir. 2008) (holding that, in assessing the defendant’s history and 

characteristics, the district court reasonably emphasized his prior fraud-related 

crimes as an aggravating factor, even though his prior offenses had been relied 

upon in calculating the guideline range).

Other aggravating factors not reflected in the guidelines’ calculation also 

existed.4

 Showing further disregard for the law, Defendant had violated the 

supervised release imposed for his 2012 federal conviction by leaving his state of 

residence and associating with other convicted felons. In addition, when police 

arrested Defendant for attempted cocaine trafficking in 2018, he used an alias,

suggesting an effort to avoid detection of his true identity and thereby escape the 

full consequences of his criminal conduct. 

4

 Given the PSR’s unobjected-to factual description of the conduct underlying Defendant’s 2010 

arrest for criminal conspiracy to engage in aggravated assault, kidnapping for ransom, and 

terroristic threats with intent to terrorize another, the Government argues that this conduct should 

also be considered in evaluating the reasonableness of the district court’s sentence—even though 

a jury acquitted Defendant of these charges. The record, however, indicates that the district court 

did not base its sentencing decision on this arrest, or the underlying charged conduct. We 

therefore do not consider the Government’s argument in reaching our determination that the 

district court’s sentence was not unreasonable.

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“[T]here is no exact calculus to identify what is a reasonable sentence,”

United States v. Owens, 464 F.3d 1252, 1256 (11th Cir. 2006), and our deferential 

standard of review “allows a range of choice for the district court,” Irey, 612 F.3d 

at 1189 (quotation marks omitted). Bearing in mind that a district court’s sentence 

“need only be a reasonable one”—not “the most appropriate one”—we cannot say 

that the district court’s sentence “lies outside the range of reasonable sentences 

dictated by the facts of the case.” Gomez, 955 F.3d at 1257 (quotation marks 

omitted). 

III. CONCLUSION

Because Defendant has not shown that his 60-month sentence was 

substantively unreasonable, we affirm. 

AFFIRMED.

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