Case: 12-15678   Date Filed: 07/08/2013   Page: 1 of 6




                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15678
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:12-cr-00168-CLS-MHH-1



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

versus

ANA MARIA ANASTACIO,

                                                     Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                               (July 8, 2013)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
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      Ana Anastacio appeals her 48-month sentence for fraudulent use of an

immigration document, in violation of 18 U.S.C. § 1546(a) (Count 1), and

aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count 2). Anastacio

pleaded guilty to both counts, and the district court imposed two 24-month

sentences, to run consecutively, for each count. Despite being given an

opportunity to do so by the district court, Anastacio did not object to her sentence.

      On appeal, Anastacio argues that her total sentence was procedurally

unreasonable, and that the district court committed plain error when it failed to

provide specific reasons and a meaningful explanation for the sentence imposed.

She also argues that the district court committed plain error by imposing an 18-

month upward variance from the applicable guideline range for Count 1, which

was substantively unreasonable in light of the record and the sentencing factors set

forth in 18 U.S.C. § 3553(a). Upon review of the record and consideration of the

parties’ briefs, we affirm.

                                              I.

      We normally review the reasonableness of a sentence under a deferential

abuse of discretion standard. Gall v. United States, 

, 51, 

, 597 (2007). However, where an appellant failed to object to her sentence in

the district court below, we review only for plain error. United States v. Johnson,

, 1195 (11th Cir. 2012). “Plain error occurs where (1) there is an


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error; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights in

that it was prejudicial and not harmless; and (4) that seriously affects the fairness,

integrity or public reputation of the judicial proceedings.” United States v.

Hoffman-Vaile, 

, 1340 (11th Cir. 2009) (internal quotation marks

omitted).

      The party challenging the sentence bears the burden of establishing that the

sentence is unreasonable in light of the record. United States v. De La Cruz

Suarez, 

, 1223 (11th Cir. 2010). First, we must determine whether

the district court committed any significant procedural error. United States v.

Bradley, 

, 1303–04 (11th Cir. 2011), cert. denied, 

(2012). “A sentence may be procedurally unreasonable if the district court

improperly calculated the guideline range, treated the guidelines as mandatory

rather than advisory, failed to consider the 18 U.S.C. § 3553(a) factors, selected a

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

chosen sentence.” De La Cruz Suarez, 601 F.3d at 1223. Although the district

court must consider the § 3553(a) factors, it is not required to state on the record

that it has explicitly considered each of the factors or to discuss each one

individually. See United States v. McNair, 

, 1231 (11th Cir. 2010).

The district court must adequately explain the chosen sentence, and in doing so

“should set forth enough to satisfy the appellate court that [it] has considered the


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

decisionmaking authority.” United States v. Agbai, 

, 1230 (11th Cir.

2007) (per curiam) (internal quotation marks omitted); see Gall, 552 U.S. at 51,

128 S. Ct. at 597.

      If we find that the sentence is procedurally reasonable, we must then

determine whether the sentence is substantively reasonable under the totality of the

circumstances, including whether the § 3553(a) factors actually support the

sentence at issue. United States v. Barrington, 

, 1203–04 (11th Cir.

2011), cert. denied, 

 (2012). The weight given to any particular

factor under § 3553(a) is left to the sound discretion of the district court, absent a

clear error of judgment, United States v. Irey, 

, 1190 (11th Cir.

2010) (en banc), and we generally do not second-guess the weight that the district

court gave to any one factor. United States v. Snipes, 

, 872 (11th Cir.

2010). We will only reverse a sentence as substantively unreasonable 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.”

Irey, 612 F.3d at 1190 (internal quotation marks omitted). The reasonableness of a

sentence may also be indicated where the sentence imposed is well below the




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statutory maximum sentence. United States v. Gonzalez, 

, 1324

(11th Cir. 2008) (per curiam).

      Anastacio’s total 48-month sentence was procedurally reasonable. While

she contends that the district court failed to provide specific reasons for the

sentence imposed, the record proves otherwise: the district court explicitly

considered the nature and circumstances of the offenses, the seriousness of the

offenses, the suffering and loss inflicted upon Anastacio’s victim, and the need for

the sentence to reflect those considerations and promote respect for the law.

Accordingly, the district court exhibited “a reasoned basis for exercising [its] own

legal decisionmaking authority,” Agbai, 497 F.3d at 1230 (internal quotation marks

omitted), and therefore did not plainly err in determining Anastacio’s sentence.

      Anastacio’s 24-month sentence as to Count 1 was also substantively

reasonable in light of the record and the § 3553(a) factors. Anastacio argues that

the district court gave undue weight to the “nature and circumstances of the

offense,” and that several of the other § 3553(a) sentencing factors weighed in

favor of a lesser sentence. However, the weight given to any particular factor is

left to the sound discretion of the district court, absent a clear error of judgment.

See Irey, 612 F.3d at 1190. The record shows that Anastacio used the victim’s

identity to obtain employment, to acquire an Indiana non-driver identification card,

and to open mobile phone and satellite dish network accounts. As a result of


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Anastacio’s illegal actions, the victim incurred unauthorized debts that adversely

affected her credit score, was unable to meet her mortgage obligations and lost her

home to foreclosure, was unable to obtain unemployment benefits, and was

assessed additional tax liability from 2007 to 2010 for unreported income. Based

on these facts, the district court appropriately considered Anastacio’s conduct, the

nature and circumstances of the offense, and the seriousness of the offense under

§ 3553(a). See 18 U.S.C. §§ 3553(a)(1)–(2). Moreover, while Anastacio’s 24-

month sentence for Count 1 exceeded the applicable guideline range of 0 to 6

months, it was well below the statutory maximum sentence of 10 years’

imprisonment. See 18 U.S.C. § 1546(a). Thus, the district court did not plainly err

in imposing an 18-month upward variance in Anastacio’s sentence for Count 1.

      AFFIRMED.




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