[DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             APRIL 21, 2011
                                No. 10-14381
                                                               JOHN LEY
                            Non-Argument Calendar               CLERK
                          ________________________

                     D.C. Docket No. 2:10-cr-14037-KMM-1

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                      versus

MODESTO ANTONIO LORA,
a.k.a. Cirilo De Jesus Zapata-Lora,

                                                           Defendant-Appellant.

                          ________________________

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

                                 (April 21, 2011)

Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Modesto Antonio Lora appeals his 36-month sentence for illegal reentry

into the United States following deportation subsequent to an aggravated felony,

in violation of 8 U.S.C. § 1326(a), (b)(2). He argues that the upward variance

from his guideline sentencing range was unreasonable and created an unwarranted

disparity with the sentences imposed on similarly situated offenders. For the

reasons set forth below, we affirm.

                                          I.

      In 2010, sheriff’s deputies in Florida located ten individuals on the beach at

St. Lucie Inlet Park, all of whom admitted to having just arrived in the United

States illegally. One of the individuals, Lora, stated that he had traveled by boat

from the Bahamas with the assistance of a smuggler. Agents discovered that Lora,

using the alias Cirilo De Jesus Zapata-Lora, had been convicted in New York in

1990 for the aggravated felony of attempted third-degree criminal possession of a

controlled substance. He had been deported later that year to his home country of

the Dominican Republic. In 2008, he was incarcerated in Ohio under a criminal-

alien program and again was removed to the Dominican Republic. As to the

instant 2010 reentry, he freely admitted that he did not possess immigration

documents that would allow him to enter the United States, that he had not sought




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permission to reenter, and that he had intentionally reentered in order to see his

family members who permanently reside here.

      Lora pled guilty to illegal reentry into the United States after having

previously been arrested and deported, in violation of 8 U.S.C. § 1326(a), (b)(2).

In calculating his guideline sentencing range, the probation office assigned a base

offense level of 8, pursuant to U.S.S.G. § 2L1.2, and an eight-level enhancement

for having previously been deported after a conviction for an aggravated felony,

pursuant to § 2L1.2(b)(1)(C). With a 3-level adjustment for acceptance of

responsibility, § 3E1.1(a)-(b), Lora had a total offense level of 13. A 2007

conviction for illegal reentry, which had led to his 2008 removal, placed him in

criminal history category II. No criminal-history points were assigned for the

1990 controlled-substance conviction or for a 1995 conviction for unlicensed

operation of a motor vehicle. Lora was subject to statutory maximum sentences of

20 years’ imprisonment and 3 years’ supervised release, as well as guideline

ranges of 15-21 months’ imprisonment and 2-3 years’ supervised release.

      At the sentencing hearing, the court noted that Lora had received a 20-

month sentence for the 2007 illegal-reentry conviction, and counsel acknowledged

that the instant reentry had taken place 1 day after the expiration of Lora’s

supervised release in that case. The court indicated that it was inclined to sentence

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Lora above the guideline range, as the previous sentence had failed to make an

effective impression on Lora. The court stated that Lora had not received “the

message [that] he is not supposed to be here” and it expressed skepticism that a

high-end guideline sentence of 21 months’ imprisonment would be sufficient. It

indicated that a 36-month sentence might “get[] his attention.” Counsel argued

that Lora loved his family and that the arrest had sent the message that he could

not be with his family. Other than driving offenses, Lora’s only previous

convictions had been the 1990 drug case and the 2007 illegal-reentry case.

Counsel argued that a within-guideline sentence would be appropriate.

      The court noted again that this was Lora’s second conviction for the same

offense, and that he had reentered the United States less than two years after his

most recent deportation. It then adopted the guideline calculations and found that

a sentence above the guideline range was appropriate, in light of the nature and

circumstances of the offense, the history and characteristics of the defendant, and

the need to afford adequate deterrence. It stated that a guideline sentence would

be too similar to the previous, inadequate sentence. Accordingly, it sentenced

Lora to 36 months’ imprisonment and 2 years’ supervised release.

                                         II.




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

discretion standard. United States v. Irey, 

, 1188 (11th Cir. 2010)

(en banc), petition for cert. filed, (Nov. 24, 2010) (No. 10-727). We will reverse a

sentence under that standard only if the district court has made a clear error of

judgment. 

When conducting this review, we take into account the

totality of the facts and circumstances, including the extent of any variance from

the guideline range. Gall v. United States, 

, 51, 

, 597,

(2007). The appellant bears the burden of establishing that the

sentence is unreasonable. United States v. Talley, 

, 788 (11th Cir.

2005).

      After United States v. Booker, 

, 

, 

(2005), sentencing is a two-step process that requires the district court first to

“consult the Guidelines and correctly calculate the range provided by the

Guidelines,” then to consider the factors in 18 U.S.C. § 3553(a) and determine a

reasonable sentence. 

. Those 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

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with training or medical care; (6) the kinds of sentences available; (7) the

sentencing guideline 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 the victims. 

3553(a)). The

sentence must be sufficient, but no greater than necessary, to punish, deter, protect

the public, and provide the training and care outlined in the statute. § 3553(a).

      The district court commits a clear error of judgment if it weighs the

§ 3553(a) factors unreasonably, thus arriving at a sentence that does not achieve

the statutory purposes of sentencing. 

. The court may also

abuse its discretion by failing to consider relevant factors that were due significant

weight, or by giving significant weight to an improper or irrelevant factor. 

district court does not abuse its discretion when it merely attaches

“great weight” to a single, permissible factor or set of factors. 

, 128 S.Ct. at 600-02.

      Here, the district court noted that Lora previously had received a 20-month

sentence for his earlier illegal-reentry conviction, and counsel acknowledged that

Lora had reentered the United States 1 day after his supervised release for that

conviction had expired. The court found that the earlier sentence had not deterred

Lora from reentering, and it indicated that a high-end guideline sentence of 21

                                          6
months’ imprisonment was unlikely to do so, either. The court heard argument

about Lora’s family life and his criminal background. It then sentenced Lora to 36

months’ imprisonment, approximately a 71% upward variance from the high end

of his guideline range, in light of the nature and circumstances of the offense,

Lora’s history and characteristics, and the need to escalate the sentence in order to

serve as adequate deterrence. The district court did not abuse its discretion in

emphasizing the need for deterrence and the demonstrated inadequacy of a 20-

month sentence. See 

, 128 S.Ct. at 600-02; 

.

      As to the comparative-sentencing examples discussed for the first time in

Lora’s initial brief, the only reasonably comparable cases are United States v.

Gamez-Mendoza, 203 Fed.Appx. 678 (5th Cir. 2006), and United States v. Solis-

Bermudez, 

(8th Cir. 2007). While Lora is correct that his scored

criminal history is less extensive and his variance of a greater magnitude than

those in Gamez-Mendoza and Solis-Bermudez, these two cases alone are

insufficient to show that the district court in Lora’s case created a plainly

erroneous sentencing disparity in imposing the 36-month sentence. See United

States v. Aguillard, 

, 1320 (11th Cir. 2000) (holding that a

sentencing argument raised for the first time on appeal is reviewed for plain error).

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For the foregoing reasons, we affirm Lora’s sentence.

AFFIRMED.




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