FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 15, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11497

Non-Argument Calendar

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D. C. Docket No. 07-20977-CR-DMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

LESTER ALFRED BARCOE, 

a.k.a. William O’Neil,

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 15, 2008)

Before CARNES, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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Lester Alfred Barcoe appeals his 77-month sentence imposed after he

pleaded guilty to having been found in the United States after having previously

been deported from the United States, in violation of 8 U.S.C. §§ 1326(a) and

1326(b)(2). Barcoe argues that his within-Guidelines sentence was unreasonable

because his family circumstances are such that the district court should have

granted a departure from the Guidelines. For the reasons stated below, we affirm.

We review the district court’s final sentence for reasonableness under an

abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179, 1189 (11th

Cir. 2008) (citing Rita v. United States, 127 S.Ct. 2456, 2465 (2007)). We must

first ensure that the district court committed no significant procedural error, such

as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence. Gall v. U.S., 522 U.S. __, 128 S.Ct. 586, 597 (2007). If the

district court’s sentencing decision is procedurally sound, we must then consider

the “substantive reasonableness of the sentence imposed, under an abuse-ofdiscretion standard,” based on the “totality of the circumstances.” Id. “The party

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

unreasonable in the light of both th[e] record and the factors in section 3553(a).” 
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United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation

omitted).

As an initial matter, we note that Barcoe does not claim any procedural error

in the determination of his sentence. The record demonstrates that the district

court correctly calculated the applicable Guidelines range, allowed both parties to

present arguments as to what they believed the appropriate sentence should be,

considered all of the § 3553(a) factors, and thoroughly explained its reasoning. 

The district court’s sentencing decision was procedurally sound. 

Next, we review the substantive reasonableness of the sentence and

conclude that Barcoe’s claim that the district court acted unreasonably in failing to

grant a departure based on his family circumstances is without merit. At

sentencing, Barcoe argued for mitigation based on his family obligations,

including his responsibilities to his three children in the United States and the

recent death of his father and grandfather. After this allocution, the district court

considered Barcoe’s family situation, but found that this mitigating factor was

outweighed by the other § 3553(a) factors, including the Guideline range,

Barcoe’s criminal history that was not taken into account by the Guidelines, and

Barcoe’s history of illegally returning to this country. The district court placed

special emphasis on Barcoe’s criminal history, and it concluded that 77 months’
 Based upon Barcoe’s offense level of 21 and criminal history category of VI, the 1

presentence report calculated a Guideline range of 77-96 months. The statutory maximum is 20

years and there is no statutory minimum. 8 U.S.C. § 1326(b)(2).

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imprisonment – which was the lowest within-Guidelines sentence available and far

below the statutory maximum – is reasonable. We find no abuse of discretion in 1

the determination that a sentence at the low end of the Guidelines is substantively

reasonable. 

In short, Barcoe’s within-Guidelines sentence is neither procedurally nor

substantively unreasonable, and the district court did not abuse its discretion in

imposing it. For the foregoing reasons, Barcoe’s sentence is AFFIRMED.