FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 16, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16352

Non-Argument Calendar

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D. C. Docket No. 09-00040-CR-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMILIO ANTUNEZ-REBOLLAR,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(August 16, 2010)

Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

Emilio Antunez-Rebollar appeals his 20-month sentence and $1,000 fine
imposed after he pled guilty to being an illegal alien who re-entered the United

States after being deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2).

I. Fine

Antunez-Rebollar argues that the district court failed to articulate a basis for

its arbitrary conclusion that he, while unable to pay the guideline fine of $5,000 or

more, was able to pay the amount of $1,000. Antunez-Rebollar claims that the

district court misunderstood his inability to earn money while in prison and then

neglected other relevant factors, namely, his lack of earning power in Mexico and

the harsh impact of the fine on his wife and three children. Antunez-Rebollar also

argues that the district court erred in determining that he would be able to earn

enough money to pay a fine following his release from prison as, once he is

deported, the little money he may earn in Mexico with his second-grade education

will be spent in support of his wife and children.

We review the district court’s imposition of a fine for clear error. United

States v. Lombardo, 35 F.3d 526, 527 (11th Cir. 1994). The district court “shall

impose a fine in all cases, except where 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).

In determining whether to impose a fine and the amount and method of its

payment, the district court shall consider the § 3553(a) factors as well as

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(1) the defendant’s income, earning capacity, and financial resources;

(2) the burden that the fine will impose upon the defendant, any

person who is financially dependent on the defendant, or any other

person (including a government) that would be responsible for the

welfare of any person financially dependent on the defendant, relative

to the burden that alternative punishments would impose;

(3) any pecuniary loss inflicted upon others as a result of the offense;

(4) whether restitution is ordered or made and the amount of such

restitution;

(5) the need to deprive the defendant of illegally obtained gains from

the offense;

(6) the expected costs to the government of any imprisonment,

supervised release, or probation component of the sentence;

18 U.S.C. § 3572(a). A defendant who “failure[s] to object to allegations of fact in

a PSI admits those facts for sentencing purposes.” United States v. Wade, 458 F.3d

1273, 1277 (11th Cir. 2006).

The district court relied heavily on the mistaken belief that AntunezRebollar would be able to earn money in a prison work program ; however, this

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error does not amount to clear error because Antunez-Robellar has not met his

burden of establishing that “he is unable to pay and is not likely to become able to

pay any fine.” U.S.S.G. § 5E1.2(a). Although the Defendant generally objected to

Because an alien criminal defendant serving a sentence of imprisonment is not 1

eligible to work in a federal prison industry, the Defendant will be unable to earn money during

his prison sentence. 

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the fine, he did not make any specific arguments regarding his alleged inability to

pay. Moreover, he failed to object to the statement in the PSI that “he may be able

to contribute toward a fine on an installment basis while serving his period of

incarceration.” Thus, he effectively admitted that fact, and the district court did not

clearly err by taking that fact into account in imposing the fine.

In sum, the district court did not clearly err in imposing a $1,000 fine

because Antunez-Rebollar did not establish that he was unable to pay and would

not likely become able to pay any fine.

II. Substantive Reasonableness

Antunez-Rebollar argues that his sentence is substantively unreasonable

because it was greater than necessary to satisfy the factors set forth in 18 U.S.C.

§ 3553(a). He also argues that his guideline range was manifestly unreasonable

because it was based almost entirely on a 15-year-old drug conviction–a conviction

that because of its age did not warrant any criminal history points under the

guidelines. Antunez-Rebollar points out that his 12-level enhancement for this

prior conviction resulted in a punishment as severe as that applied to illegal reentry defendants who have committed serious crimes much more recently. He also

argues that his base offense level, before the enhancement for his prior drug

conviction, fully captured his act of illegally re-entering the country and that his

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prior conviction was so far in the past as to be irrelevant to measure his present

dangerousness or culpability. Finally, Antunez-Rebollar claims that because he is

now a working, family man, the district court’s 20-month sentence serves no valid

purpose.

We consider the substantive reasonableness of the sentence imposed under

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

586, 597 (2007). The Supreme Court has suggested that such review entails

determining whether the sentence is supported by the § 3553(a) factors. Id. at 56,

128 S. Ct. at 600. Where the district court imposes a within-guidelines sentence, it

need only “set forth enough to satisfy the appellate court that it has considered the

parties’ arguments and has a reasoned basis for exercising [its] own legal decision

making authority.” Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468

(2007). There is a “range of reasonable sentences from which the district court

may choose,” and “the party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable in light of both [the] record and the

factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005).

The § 3553(a) factors include: (1) the nature and circumstances of the

offense and the history and characteristics of the defendant; (2) the need to reflect

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

punishment for the offense; (3) the need for deterrence; (4) the need to protect the

public; (5) the need to provide the defendant with needed educational or vocational

training or medical care; (6) the kinds of sentences available; (7) the Sentencing

Guidelines range; (8) pertinent policy statements of the Sentencing Commission;

(9) the need to avoid unwanted sentencing disparities; and (10) the need to provide

restitution to victims. See 18 U.S.C. § 3553(a).

Antunez-Rebollar did not establish that his sentence was unreasonable in

light of either the record or the 18 U.S.C. § 3553(a) factors. The purpose of the

enhancement under U.S.S.G. § 2L1.2(b)(1) is to deter aliens from re-entering the

United States. See United States v. Adeleke, 968 F.2d 1159, 1160 (11th Cir. 1992).

The record shows that in reach the sentencing decision, the district court

considered the need to deter Antunez-Rebollar from reentering the United States,

the need to avoid unwarranted sentencing disparities, and the applicable advisory

guideline range. Thus, the district court did not abuse its discretion in sentencing

Antunez-Rebollar to 20 months’ imprisonment.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.

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Appellant’s request for oral argument is DENIED. 2

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