Case: 12-16448   Date Filed: 08/15/2013   Page: 1 of 4




                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-16448
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 1:12-cr-00309-SCJ-GGB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

JIMMS GUTIERREZ-VENEGAS,
a.k.a. Jimmys Banegas Gutierrez,
a.k.a. Jimmez Hernandez-Venegas,
a.k.a. Jimmy Hernandez-Venegas,
a.k.a. Jimmes Hernandez-Venegas,
a.k.a. Jaime Hernandez,
a.k.a. Jimmy Hernandez,
a.k.a. Jimmy Hernandez Gutierrez-Banegas,
a.k.a. Jimis Hernandez-Banegas,
a.k.a. David Hector,

                                                           Defendant-Appellant.
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                                ________________________

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

                                       (August 15, 2013)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

       After pleading guilty, Jimms Gutierrez-Venegas appeals his 46-month

sentence for illegal re-entry of a previously removed alien, in violation of 8 U.S.C.

§ 1326(a), (b)(2). Gutierrez argues that his sentence, at the low end of the advisory

guidelines range, is substantively unreasonable. After review, we affirm.

       We review the reasonableness of a sentence under the deferential abuse of

discretion standard. Gall v. United States, 

, 41, 

, 591

(2007). In reviewing for reasonableness, we first consider whether the district

court committed any significant procedural error and then whether the sentence is

substantively unreasonable under the 18 U.S.C. § 3553(a) factors and the totality of

the circumstances. United States v. Pugh, 

, 1190 (11th Cir. 2008). 1


       1
         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 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 unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
                                                  2
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      The abuse of discretion standard “allows a range of choice for the district

court, so long as that choice does not constitute a clear error of judgment.” United

States v. Irey, 

, 1189 (11th Cir. 2010) (en banc) (internal quotation

marks omitted). The weight to be given any specific § 3553(a) factor is committed

to the sound discretion of the district court. United States v. Clay, 

,

743 (11th Cir. 2007). We ordinarily expect a sentence within the guidelines range

to be reasonable. United States v. Talley, 

, 788 (11th Cir. 2005). The

party challenging the sentence bears the burden of proving that the sentence is

unreasonable. 

below the statutory maximum is another

indicator of a reasonable sentence. United States v. Haile, 

, 1223-24

(11th Cir.), cert. denied, 

(2012).

      Gutierrez has not shown that his 46-month sentence is substantively

unreasonable.2 Gutierrez’s sentence is at the low end of the applicable guideline

range of 46 to 57 months’ imprisonment and is well below the twenty-year

statutory maximum penalty for Gutierrez’s offense. Moreover, the 46-month

sentence is supported by the § 3553(a) factors. Gutierrez already has been

removed from the United States twelve times, and the district court was troubled

by his recidivism. The district court also emphasized Gutierrez’s extensive

criminal history in the United States, which includes felony convictions for


      2
          Gutierrez does not argue that the sentence is procedurally unreasonable.
                                                  3
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distribution of a controlled substance, robbery and burglary, and theft by receiving

stolen property. The district court properly considered Gutierrez’s prior

convictions and history of deportations, which relate to the need to promote respect

for the law, deter future criminal conduct, and protect the public. See 18 U.S.C.

§ 3553(a)(2).

      Although Gutierrez contends otherwise, the district court did not focus

solely on Gutierrez’s criminal history and deportations to the exclusion of other

information relevant to the § 3553(a) factors. The record shows that the district

court gave due consideration to Gutierrez’s personal history and characteristics,

including his difficult childhood, his unusual journey to the United States as an

adolescent, and his reasons to stay in Honduras after he serves his federal sentence.

These facts were recounted in detail in the presentence investigation report and the

defendant’s sentencing memorandum and then were discussed by the parties

during the sentencing hearing. The district court considered Gutierrez’s arguments

in mitigation and concluded that they did not warrant a sentence below the

advisory guidelines range.

      Under the totality of the circumstances, we cannot say the district court

abused its discretion in imposing a 46-month sentence.

      AFFIRMED.




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