[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-14704                ELEVENTH CIRCUIT
                                                              JUNE 22, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                    D. C. Docket No. 09-20169-CR-PAS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DAMIAN LAZARO HERNANDEZ,
a.k.a. Paisa,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                               (June 22, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Damian Lazaro Hernandez appeals his 46-month total sentence imposed for
conspiracy to possess with intent to distribute five grams or more of crack cocaine,

in violation of 21 U.S.C. § 846 (Count 1), and possession with intent to distribute

five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts

2 and 3). On appeal, Hernandez argues that his total sentence was unreasonable in

light of the district court’s failure to sentence him based on a “1-to-1” crack-to-

powder cocaine ratio.

       We review a final sentence imposed by a district court for reasonableness.

United States v. Williams, 

, 1321 (11th Cir. 2008). The Supreme

Court has clarified that reviewing a sentence for reasonableness is review for abuse

of discretion.1 Gall v. United States, 

, 51, 

, 597 (2007).

The burden of establishing that a sentence is unreasonable lies with the party

challenging the sentence. 

. Upon thorough review of

the parties’ briefs and the record, we conclude that the district court did not abuse

its discretion in choosing not to apply a “1-to-1” crack-to-powder cocaine ratio and

that Hernandez has not satisfied his burden to show that his sentence was

procedurally or substantively unreasonable.2

       1
                 We reject the government’s argument that we should review Hernandez’s claim on
appeal for plain error due to a failure to object to the court’s reasons for not applying a “1-to-1”
crack-to-powder cocaine ratio. Whether the district court erred in not applying the “1-to-1” ratio
is a challenge to the reasonableness of his sentence, to which an abuse of discretion standard applies.
       2
              Hernandez mischaracterizes his sentence by asserting that it was based on a “100-to-
1” crack-to-powder cocaine ratio. In calculating Hernandez’s sentence, the district court applied the

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       A sentence is procedurally unreasonable if the district court failed to

calculate or incorrectly calculated the Guidelines, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors,3 selected a sentence based on

clearly erroneous facts, or failed to adequately explain the chosen sentence. 

, 128 S. Ct. at 597. The district court erred in none of these respects.

To the contrary, it is undisputed that the court correctly calculated the Guidelines,

giving Hernandez a two-point safety-valve reduction under U.S.S.G. § 2D1.1(b)

and § 5C1.2(a) and a three-point acceptance-of-responsibility reduction under §

3E1.1(a). The court also expressly stated that it had considered the arguments of

the parties, the PSI, the advisory nature of the Guidelines, and the § 3553(a) factors

in calculating Hernandez’s sentence. The court particularly emphasized the

seriousness of the offense, the centrality of Hernandez’s participation in the drug



post-Amendment 706 version of the Guidelines, which is based on crack-to-powder cocaine ratios
less than 100-to-1. See U.S.S.G. § 2D1.1(c).
       3
               The factors in § 3553(a) that the sentencing court must consider are:

       (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 unwanted
       sentencing disparities; and (10) the need to provide restitution to victims.

United States v. Talley, 

, 786 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)).

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conspiracy, and that his offense preyed upon drug-addicted victims in its

consideration of the § 3553(a) factors. A district court need not explicitly discuss

its consideration of each of the § 3553(a) factors on the record, as long as the

sentencing judge “set[s] forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

legal decisionmaking authority.” Rita v. United States, 

, 356, 127 S.

Ct. 2456, 2468 (2007).

      Moreover, the court’s discussion of Kimbrough shows that it did not treat

the Guidelines as mandatory. See Kimbrough v. United States, 

, 128 S.

Ct. 558 (2007) (addressing the Sentencing Guidelines “100-to-1” crack-to-powder

cocaine ratio). The court properly noted Hernandez’s argument that he should be

sentenced under a “1-to-1” crack-to-powder cocaine ratio, but concluded that to do

so would result in insufficient punishment in light of the nature of the drug

conspiracy and its impact on its victims. Although the Supreme Court held in

Kimbrough that a sentencing court has discretion to consider the crack and powder

cocaine disparity, it did not require courts to adopt a lower guideline sentencing

range in crack cocaine cases. 

128 S. Ct. at 575 (“[I]t would not be an

abuse of discretion for a district court to conclude when sentencing a particular

defendant that the crack/powder disparity yields a sentence ‘greater than necessary’



                                           4
to achieve § 3553(a)’s purposes, even in a mine-run case.”). Finally, the district

court did not base the sentence on clearly erroneous facts because its findings

regarding Hernandez’s involvement in additional uncharged offense conduct and

the drug-addicted nature of his victims came directly from undisputed portions of

the PSI. We thus hold that Hernandez’s sentence was not procedurally

unreasonable.

      Once we conclude that the district court made no procedural errors, we then

consider “the substantive reasonableness of the sentence” under the totality of the

circumstances. 

, 128 S. Ct. at 597. A sentence is substantively

unreasonable if it does not achieve the purposes of sentencing set forth in

§ 3553(a). 

. A district court’s “unjustified reliance” on a

single § 3553(a) factor “may be a symptom of an unreasonable sentence.” 

weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court.” 

(quotation omitted).

      Contrary to Hernandez’s assertion on appeal, the district court explicitly

balanced his request for mitigation based on the crack-powder cocaine disparity

against the § 3553(a) factors, including the need to promote adequate deterrence

and the need for the punishment to reflect the seriousness of the offense. The



                                          5
court’s consideration of these factors demonstrates that Hernandez’s sentence is

sufficient but no greater than necessary to fulfill the statutory purposes of

sentencing. Moreover, the record reflects that the court gave due consideration to

mitigating factors, including the disparity between crack and powder cocaine

sentences, because Hernandez’s 46-month total sentence falls far below the

statutory maximum of 480 months of imprisonment. See 21 U.S.C. §

841(b)(1)(B). In sum, we conclude that Hernandez’s 46-month total sentence was

substantively reasonable.

      Accordingly, we affirm Hernandez’s 46-month total sentence and hold that

the district court did not abuse its discretion in declining to apply a “1-to-1” crack-

to-powder cocaine ratio to its sentencing calculation.

      AFFIRMED.




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