FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 23, 2011

JOHN LEY

 CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 10-13236 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 2:10-cr-00003-WCO-SSC-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BACILIO HERNANDEZ-GUEVARA,

Defendant - Appellant.

________________________

 Appeal from the United States District Court

 for the Northern District of Georgia

 ________________________

(November 23, 2011)

Before EDMONDSON, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

Bacilio Hernandez-Guevara appeals his 48-month sentence and $1000 fine

imposed for illegally re-entering the United States after having been deported as

an aggravated felon, 8 U.S.C. § 1326(a) and (b)(2). No reversible error has been
shown; we affirm. 

On appeal, Hernandez-Guevara argues that his sentence procedurally is

unreasonable because the district court failed to explain its reasons for imposing

the sentence or to state that it had considered his arguments and the factors set

forth in 18 U.S.C. § 3553(a). Because he did not object to the procedural

reasonableness of his sentence, we review only for plain error. See United States

v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). A sentence may be

procedurally unreasonable if the district court fails to consider the factors set forth

in section 3553(a) or to explain adequately the chosen sentence. United States v.

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Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). The district court, however, is

not required to discuss or to state each factor explicitly. Id. at 1324. 

That the district court considered Hernandez-Guevara’s arguments and the

section 3553(a) factors in imposing his sentence is clear from the record. At the

sentencing hearing, the court stated that the sentence was reasonable in the light of

the “circumstances of the case” and Hernandez-Guevara’s “prior [criminal]

record,” and noted that the sentence was at the low end of the guideline range. 

Under section 3553(a), a district court must consider the nature and circumstances of the 1

offense, the history and characteristics of the defendant, the need for the sentence to provide

adequate deterrence, respect for the law, and protection of the public, the defendant’s medical

and educational needs, the advisory guideline range, the Sentencing Commission’s policy

statements, and the need to avoid unwarranted sentencing disparities and provide restitution. See

18 U.S.C. § 3553(a)(1)-(7).

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Thus, the sentence expressly considered the nature and circumstances of the

offense, the defendant’s history and characteristics, and the advisory guideline

range. See 18 U.S.C. § 3553(a)(1), (4). The court’s consideration of HernandezGuevara’s criminal record also implicated the need for the sentence imposed to

promote respect for the law, afford adequate deterrence, and protect the public

from further crimes. See 18 U.S.C. § 3553(a)(2). Thus, Hernandez-Guevara has

failed to demonstrate that the district court plainly erred.

Hernandez-Guevara also argues that his sentence substantively is

unreasonable because the court failed to consider properly various mitigating

factors. We evaluate the substantive reasonableness of a sentence under a

deferential abuse-of-discretion standard. Gall v. United States, 128 S.Ct. 586, 597

(2007). The party challenging the sentence bears the burden of establishing that

the sentence is unreasonable in the light of both the record and the section 3553(a)

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

We conclude that Hernandez-Guevara failed to satisfy his burden of proof. 

First, his 48-month sentence is at the low end of the 46 to 57-month advisory

guideline sentence range; and we ordinarily expect such a sentence to be

reasonable. See id. at 787-88 (concluding that, although not per se reasonable,

“ordinarily we would expect a sentence within the Guidelines range to be

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reasonable”). His sentence is also well below the 20-year statutory maximum

sentence for his offense. See Gonzalez, 550 F.3d at 1324 (concluding that the

reasonableness of a sentence may also be indicated when the sentence imposed

was well below the statutory maximum sentence). 

Given Hernandez-Guevara’s prior criminal record -- including convictions

for smuggling aliens, driving under the influence, and simple battery, which

resulted in two earlier deportations -- a sentence within the guideline range was

needed to promote respect for the law, to provide just punishment, and to deter

him from further criminal activity. Although he asserts that the court failed to

consider properly various mitigating factors, the weight to be given a particular

factor is left to the sound discretion of the district court, absent a clear error of

judgment. See United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). 

Because we see no such error, Hernandez-Guevara failed to demonstrate that his

sentence was substantively unreasonable. 

Hernandez-Guevara also argues that the district court erred when it ordered

him to pay a fine and failed to discuss the factors set out in U.S.S.G. § 5E1.2 in

setting the amount of the fine. In particular, he contends that the court did not

consider adequately his unemployment, lack of “discernable skills,” lack of assets,

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and his role as the sole provider for his wife, children, father, and grandparents.

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We review the district court’s decision to impose a fine for clear error. 

United States v. Rowland, 906 F.2d 621, 623 (11th Cir. 1990). The Sentencing

Guidelines require a fine in all cases unless “the defendant establishes that he is

unable to pay and is not likely to become able to pay any fine.” U.S.S.G. §

5E1.2(a). If the defendant satisfies this burden of proof, or proves that the fine

would have an undue burden on his dependents, the court may waive the fine or

impose a fine below the guideline range. U.S.S.G. § 5E1.2(e). Once the court

concludes that a fine is appropriate, it must consider several factors in setting the

amount of the fine, including the following factors relevant to this appeal: (1) the

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

the law, provide just punishment, and afford adequate deterrence; (2) the

defendant’s ability to pay the fine; (3) the burden the fine would place on the

defendant’s dependents; and (4) any collateral consequences of conviction. 

U.S.S.G. § 5E1.2(d). The district court is not required to make specific findings

on each of these factors so long as “the record contains sufficient information with

respect to the . . . factors to permit us to find that [it] did not clearly err in

Contrary to Hernandez-Guevara’s assertions that he lacks “discernible skills” and is the 2

sole provider for his family, the record demonstrates that he has been successfully self-employed

as a musician and artist and that his wife works at a poultry plant. 

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imposing or in setting the amount of the fine.” United States v. Lombardo, 35

F.3d 526, 530 (11th Cir. 1994). 

Even if we assume -- based on his current unemployment, lack of assets,

and use of appointed counsel -- that Hernandez-Guevara is presently unable to 3

pay a fine, he did not satisfy his burden of establishing that he would be unable to

pay a fine in the future. First, he did not object to the conclusion in the

Presentence Investigation Report (“PSI”) -- adopted by the district court -- that,

although he was unable to pay a fine within the guideline range, “he may be able

to contribute toward a fine while incarcerated.” See United States v. Wade, 458

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F.3d 1273, 1277 (11th Cir. 2006) (concluding that a defendant who “fail[s] to

object to allegations of fact in the PSI admits those facts for sentencing

purposes”). In addition, although he testified at the sentencing hearing that he

grew up in a poor village and owned a house worth only $500 in Mexico, that he

has been a self-employed musician and artist for most of his life, recently earning

That a defendant is represented by appointed counsel is considered a “significant 3

indicator” of his present inability to pay a fine. U.S.S.G. § 5E1.2, comment. (n.3).

The government concedes that the district court relied on the mistaken belief that 4

Hernandez-Guevara would be able to earn money in a prison work program, noting that alien

criminal defendants are not eligible for such programs. Because Hernandez-Guevara did not

raise that issue on appeal, however, it is abandoned. See United States v. Curtis, 380 F.3d 1308,

1310 (11th Cir. 2004). 

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between $1500 and $2000 per month was evidenced. 

Because the PSI contained information relevant to the section 5E1.2(d)

factors, and the district court reviewed it before sentencing, “we infer without

hesitation that the district court considered the pertinent factors prior to imposing

the fine,” and it was not required to expressly address each one. See United States

v. Khawaja, 118 F.3d 1454, 1459 (11th Cir. 1997); Lombardo, 35 F.3d at 530. For

instance, the PSI included information about Hernandez-Guevara’s criminal

history, education, employment history, financial condition, dependents, and

possible deportation following his imprisonment. In the light of these factors, the

district court imposed a fine of only $1000, which was well below the guidelines

range of $7500 to $75,000. Although this fine will no doubt burden HernandezGuevara, the Sentencing Guidelines provide that “[t]he amount of the fine should

always be sufficient to ensure that the fine . . . is punitive.” U.S.S.G. § 5E1.2(d). 

We see no clear error.

AFFIRMED.

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