Case: 13-12606   Date Filed: 10/21/2013   Page: 1 of 4


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-12606
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:12-cr-00240-MHT-WC-1



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,


                                  versus

DOMINGO MIGUEL MORALES-SEBASTIAN,

                                                     Defendant - Appellant.

                      ________________________

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

                            (October 21, 2013)

Before DUBINA, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Domingo Morales-Sebastian appeals his 20-month sentence, which the

district court imposed after he pleaded guilty to one count of illegal re-entry, in

violation of 8 U.S.C. § 1326(b). After careful review, we affirm.

      After Morales-Sebastian pleaded guilty, the probation officer prepared a

presentence investigation report (PSI) calculating his base-offense level of 8, under

U.S.S.G. § 2L1.2(a). Because Morales-Sebastian previously had been deported

after a prior conviction for a crime of violence, the PSI applied a 12-level

enhancement. Id. § 2L1.2(b)(1)(A)(ii). With a 3-level reduction for acceptance of

responsibility, his total offense level was 17. Because Morales-Sebastian’s

criminal-history category was I, his ultimate guidelines range was 24-30 months’

imprisonment. The district court adopted the PSI’s calculations but ultimately

sentenced Morales-Sebastian to a below-guidelines sentence of 20 months. This is

Morales-Sebastian’s appeal.

      We review the substantive reasonableness of a sentence under an abuse of

discretion standard. Gall v. United States, 

, 41 (2007). The district

court must impose a sentence that is “sufficient, but not greater than necessary to

comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including the need to

reflect the seriousness of the offense, deter criminal conduct, and protect the public

from the defendant’s potential future criminal conduct. 18 U.S.C. § 3553(a)(2).

And the court must consider the nature and circumstances of the offense, the


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history and characteristics of the defendant, the kinds of sentences available, the

applicable guidelines range, the relevant policy statements of the sentencing

commission, the need to avoid unwarranted sentencing disparities, and the need to

provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

      Morales-Sebastian contends his sentence is unreasonable because the 12-

level enhancement for his prior burglary conviction and subsequent deportation is

unduly harsh because that conviction occurred over a decade ago. He asserts that

§ 2L1.2(b)(1)(A)(ii)’s enhancement is not supported by empirical evidence that

double-digit enhancements are warranted and, as a result, defendants sentenced

under that provision are essentially punished again for a previous offense. Based

on this injustice and on his history and characteristics, Morales-Sebastian argues,

the district court abused its discretion in varying downwards by only four months.

      We cannot agree that, in light of the district court’s thorough reasoning at

sentencing, its ultimate sentence amounted to an abuse of discretion. The district

court detailed Morales-Sebastian’s mitigating personal circumstances — he came

into the country as a child, not by his own choice — and weighed those factors

against the severity of his criminal history. The court agreed with Morales-

Sebastian that the enhancement was harsh in light of “the age of the underlying

offense” and, resultantly, sentenced him below his guidelines range, finding “the

sentence imposed is sufficient but not greater than necessary to comply with” the


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factors in § 3553(a). Based on the totality of the circumstances, which the district

court carefully considered, we cannot say the court imposed a sentence that lies

outside the range of reasonable sentences.

      AFFIRMED.




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