FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 22, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-13480

Non-Argument Calendar

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D. C. Docket No. 06-00005-CR-ORL-22-JGG

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

HECTOR SOL BAZADONI-LOA, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

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(March 22, 2007)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
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Hector Sol Bazadoni-Loa appeals his 27-month sentence for illegally reentering into the United States after deportation, in violation of 8 U.S.C. § 1326(a)

and (b)(2). Bazadoni-Loa asserts, for the first time on appeal, that his sentence is

cruel and unusual punishment because sentencing him to prison serves “no

legitimate purpose” when he will ultimately be deported. Additionally, he

contends his sentence is greater than necessary in light of the factors in 18 U.S.C.

§ 3553(a). We affirm Bazadoni-Loa’s sentence. 

I. DISCUSSION

A. Cruel and unusual punishment

We review constitutional objections not raised before the district court for

plain error. United States v. Moriarty, 429 F.3d 1012, 1018-19 (11th Cir. 2005). 

Under the plain error standard of review, if an error is plain and affects the

defendant’s substantial rights, then we may “exercise our discretion to recognize a

forfeited error, but only if the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. at 1019 (internal quotations omitted). 

“When neither the Supreme Court nor this Court has resolved an issue, and other

circuits are split on it, there can be no plain error in regard to that issue.” Id.

All individuals convicted of crimes are protected against the infliction of

cruel and unusual punishment. U.S. Const. amend. VIII. In reviewing a sentence
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to determine if it is in violation of the Eighth Amendment, we “must make a

threshold determination that the sentence imposed is grossly disproportionate to

the offense committed.” Moriarty, 429 F.3d at 1024. “In general, a sentence

imposed within the limits imposed by statute is neither excessive nor cruel and

unusual under the Eighth Amendment.” Id. (internal quotations omitted). 

Bazadoni-Loa pled guilty to illegally reentering the United States after

having been removed subsequent to a conviction for commission of an aggravated

felony, an offense that, by statute, carries a maximum term of imprisonment not to

exceed 20 years. 8 U.S.C. § 1326(b)(2). Since Bazadoni-Loa’s sentence is well

below the statutory maximum, and neither the Supreme Court nor this Court has

held that incarceration for a violation of 8 U.S.C. § 1326 constitutes cruel and

unusual punishment, the district court did not plainly err in sentencing BazadoniLoa to 27 months’ incarceration.

B. Reasonableness

When we review a sentence for reasonableness, we are deferential to the

district court and the burden rests with the defendant to prove his sentence is

unreasonable. United States v. Bonilla, 463 F.3d 1176, 1180 (11th Cir. 2006). 

“[W]e recognize that there is a range of reasonable sentences from which the

district court may choose, and when the district court imposes a sentence within the
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advisory Guidelines range, we ordinarily will expect that choice to be a reasonable

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

a sentence, the district court must consider, among other factors, “the nature and

circumstances of the offense and the history and characteristics of the defendant,”

the advisory Guidelines range, and “the need for the sentence imposed to reflect

the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense.” 18 U.S.C. § 3553(a). 

The district court correctly determined the advisory Guidelines range of 21

to 27 months’ imprisonment. Bazadoni-Loa was sentenced to 27 months’

incarceration, a period within the Guidelines range and well below the statutory

maximum of 20 years. See 8 U.S.C. § 1326(b)(2). Bazadoni-Loa has been

deported on five occasions prior to his latest arrest, which the court properly

considered when determining his current sentence. Thus, we conclude BazadoniLoa’s 27-month sentence is reasonable. 

II. CONCLUSION

Bazadoni-Loa’s sentence is not cruel and unusual punishment. Additionally,

the sentence is reasonable. 

AFFIRMED.