[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-15425

Non-Argument Calendar

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D.C. Docket No. 0:16-cr-60098-WPD-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

JOSE RENE NUNEZ-ROBLES, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(March 24, 2017)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

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Jose Nunez-Robles pleaded guilty to one count of reentry of a deported 

alien. After granting him a one month downward departure, the district court 

sentenced Nunez-Robles to 40 months in prison. He contends that his sentence 

was substantively unreasonable.

Taking into account Nunez-Robles’ acceptance of responsibility and prior 

felony conviction for possession with intent to distribute, the presentence 

investigation report in this case indicated that his advisory guideline range was 41 

to 51 months in prison. Nunez-Robles did not dispute that calculation. Instead, he 

requested a downward departure based on his “cultural assimilation” under 

U.S.S.G. § 2L1.2 cmt. n.9 (2015) and a downward variance based on the factors 

listed in 18 U.S.C. § 3553(a).

In support of his request for a downward departure and downward variance, 

Nunez-Robles indicated that he was originally brought to the United States at the 

age of seven (he was thirty-six at the time of sentencing). He went to school in 

America before dropping out after the 11th grade, married a United States citizen, 

and had two children with her. He resided continuously in the United States until 

he was first deported in February 2008. His family and friends are in this country. 

Nunez-Robles also pointed out that he re-entered the United States to reunite with 

his family and that his offense amounted to “at most, an international trespass.” 

He argued that he was not a danger to the community, had been working, and 

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would be adequately deterred from future illegal conduct by a sentence of 24 

months in prison. 

The district court granted his request for a downward departure, but only 

departed from the advisory guideline range by one month, sentencing NunezRobles to 40 months in prison instead of 41. He appeals. He contends that his 

sentence was substantively unreasonable because the district court should have 

departed or varied further downward based upon his strong ties to the United States 

and the § 3553(a) factors. We disagree.

Initially, to the extent Nunez-Robles seeks to challenge the reasonableness 

of the district court’s downward departure standing alone, he cannot do so. “This 

Court lacks jurisdiction to review a district court’s discretionary refusal to grant a 

downward departure, unless the district court incorrectly believed that it lacked the 

statutory authority to depart from the guideline range.” United States v. Norris, 

452 F.3d 1275, 1282 (11th Cir. 2006). If we lack jurisdiction to consider whether 

the district court erred by refusing to grant any departure, it follows that we lack 

jurisdiction to consider whether it should have granted a bigger one. As a result, 

we consider only Nunez-Robles’ contention that his sentence as a whole, including 

the downward departure, was substantively unreasonable.

We review the substantive reasonableness of the district court’s sentence for 

an abuse of discretion, Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 

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(2007), and “[t]he party challenging the sentence bears the burden to show it was 

unreasonable in light of the record and the [18 U.S.C.] § 3553(a) factors,” United 

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). “[W]e are to vacate the 

sentence if, but 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). 

“In general, the district court is not required to state on the record that it has 

explicitly considered each of the § 3553(a) factors or to discuss each of the 

§ 3553(a) factors. . . . It is sufficient that the district court considers the 

defendant’s arguments at sentencing and states that it has taken the § 3553(a) 

factors into account.” United States v. Sanchez, 586 F.3d 918, 967 (11th Cir. 

2009) (quotation marks and citation omitted). “Although we do not automatically 

presume a sentence within the guidelines range is reasonable, we ordinarily . . . 

expect a sentence within the [g]uidelines range to be reasonable.” United States v. 

Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (quotation marks omitted) (first 

alteration in original).

In this case, the district court expressly stated that it considered the 

§ 3553(a) factors. And its consideration of a couple of the factors is apparent from 

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the record of the sentence hearing. During the course of the government’s 

argument, the district court made clear that it did not think much weight should be 

given to several of Nunez-Robles’ prior arrests because he ultimately was not 

convicted on those charges. See 18 U.S.C. § 3553(a)(1) (requiring the district 

court to consider “the history and characteristics of the defendant”). He also 

considered the nature of Nunez-Robles’ past convictions. See id. He considered 

Nunez-Robles’ ability to pay the fines that he imposed. See id. § 3553(a)(2) 

(requiring the district court to consider “the kinds of sentences available”). And he 

clearly considered the mitigating evidence concerning Nunez-Robles’ “cultural 

assimilation” in the United States, because he granted a downward departure, even 

though he determined that “not much of one” was appropriate. See id.

§ 3553(a)(1). 

We cannot say that the district court made a “clear error in judgment” by 

balancing the factors as he did, regardless of whether we would have struck the 

same balance ourselves. Gall, 552 U.S. at 51, 128 S. Ct. at 597 (“The fact that the 

appellate court might reasonably have concluded that a different sentence was 

appropriate is insufficient to justify reversal of the district court.”); Irey, 612 F.3d 

at 1190. This is especially so in light of the fact we “expect a sentence” below “the 

[g]uidelines range to be reasonable,” even if we do not “presume” that it is. See

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Hunt, 526 F.3d at 746 (quotation marks omitted). As a result, the district court’s 

sentence was not substantively unreasonable. 

AFFIRMED.

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