Filed: Aug. 25, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT AUGUST 25, 2010 No. 09-16157 JOHN LEY Non-Argument Calendar CLERK _ D. C. Docket No. 09-00287-CR-BBM-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN OZONA-RODRIGUEZ, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Georgia _ (August 25, 2010) Before BARKETT, HULL and ANDERSON, Circuit Judges. PER CURIAM: Juan
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT AUGUST 25, 2010 No. 09-16157 JOHN LEY Non-Argument Calendar CLERK _ D. C. Docket No. 09-00287-CR-BBM-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN OZONA-RODRIGUEZ, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Georgia _ (August 25, 2010) Before BARKETT, HULL and ANDERSON, Circuit Judges. PER CURIAM: Juan O..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 25, 2010
No. 09-16157 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00287-CR-BBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN OZONA-RODRIGUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 25, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Juan Ozona-Rodriguez appeals his 24-month sentence, imposed within the
applicable guideline range, following his conviction for alien reentry without
permission in violation of 8 U.S.C. § 1326. On appeal, Ozona-Rodriguez argues
that his sentence was substantively unreasonable.1 Specifically, he asserts that his
sentence fails to achieve the goals enumerated in 18 U.S.C. § 3553(a) by failing to:
provide just punishment; reflect the seriousness of the offense; promote respect for
the law; and deter others in the community from committing similar offenses.
Where appropriate, we review a final sentence imposed by the district court
for “reasonableness” under an abuse of discretion standard. United States v.
Ellisor,
522 F.3d 1255, 1273 n.25 (11th Cir. 2008). The standard is deferential,
and we must take into account the totality of the circumstances in reviewing the
district court’s sentence. Gall v. United States,
552 U.S. 38, 41, 51,
128 S. Ct. 586,
591, 597 (2007). The party challenging the sentence carries the burden of
establishing unreasonableness. United States v. Gonzalez,
550 F.3d 1319, 1323
(11th Cir. 2008), cert. denied,
129 S. Ct. 2848 (2009).
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Ozona-Rodriguez’s brief mentions procedural reasonableness in passing but argues only
that his sentence was substantively unreasonable. Therefore, he has abandoned any challenge
that his sentence was procedurally unreasonable, and we do not address that issue on appeal. See
United States v. Jernigan,
341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (holding that issues not
raised “plainly and prominently” in the initial brief are abandoned).
2
A sentence is substantively unreasonable “if it does not achieve the purposes
of sentencing stated in § 3553(a).” United States v. Pugh,
515 F.3d 1179, 1191
(11th Cir. 2008) (quotation omitted). Pursuant to § 3553(a), the sentencing court
shall impose a sentence “sufficient, but not greater than necessary,” to comply with
the purposes of sentencing listed in § 3553(a)(2), namely reflecting the seriousness
of the offense, promoting respect for the law, providing just punishment for the
offense, deterring criminal conduct, protecting the public from future criminal
conduct by the defendant, and providing the defendant with needed educational or
vocational training or medical care. See 18 U.S.C. § 3553(a)(2).
The sentencing court must also consider the following factors in determining
a particular sentence: the nature and circumstances of the offense and the history
and characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwanted sentencing disparities, and the need to provide restitution
to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7). We defer to the district court’s
judgment regarding the weight given to each § 3553(a) factor, unless the district
court has made “a clear error of judgment” under the facts of a particular case.
Gonzalez, 550 F.3d at 1324. A district court need not discuss each § 3553(a) factor
individually.
Gonzalez, 550 F.3d at 1324. Rather, “an acknowledgment by the
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district court that it has considered the defendant’s arguments and the factors in
section 3553(a) is sufficient under Booker.” United States v. Talley,
431 F.3d 784,
786 (11th Cir. 2005) (quotation omitted). A sentencing court also “should set forth
enough to satisfy the appellate court that [it] . . . has a reasoned basis for exercising
[its] own legal decisionmaking authority.” United States v. Livesay,
525 F.3d
1081, 1090 (11th Cir. 2008) (quotation omitted). Finally, “when the district court
imposes a sentence within the advisory Guidelines range, we ordinarily will expect
that choice to be a reasonable one.”
Talley, 431 F.3d at 788.
Upon review of the record, and consideration of the parties’ briefs, we
affirm. Although Ozona-Rodriguez’s 24-month sentence reflected the statutory
maximum, it was nonetheless at the bottom of the applicable guideline range. The
district court based its decision on two major observations: first, that Ozona-
Rodriguez had not been punished the first time he had been deported, and therefore
he required more serious punishment for this offense; and second, that his criminal
history, consisting mainly of shoplifting offenses, was “impressive.” Based on his
history of repeated offenses for which he had yet to receive any significant
consequences, the district court did not abuse its discretion in imposing a 24-month
sentence in order to serve § 3553(a)’s goals of deterrence, protecting the public,
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and promoting respect for the law. Accordingly, we hold that the district court
imposed a substantively reasonable sentence.
AFFIRMED.
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