Case: 13-11079   Date Filed: 05/12/2014   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11079
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:12-cr-00156-CEH-DAB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JAVIER ORLANDO PENA,

                                                         Defendant-Appellant.

                      ________________________

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

                             (May 12, 2014)

Before PRYOR, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:
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      Javier Orlando Pena appeals his 46-month sentence, imposed at the lowest

end of the applicable guideline range, after pleading guilty to one count of

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

On appeal, Pena argues that his sentence was substantively unreasonable in light of

the factors in 18 U.S.C. § 3553(a). Pena contends that a downward variance was

justified by his history and personal characteristics. Pena also contends that the

court placed undue emphasis on his criminal history.

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

under a deferential abuse of discretion standard. United States v. Thompson, 

, 606-07 (11th Cir. 2012), cert. denied, 

(2013). The party

challenging the sentence has the burden to establish that the sentence is

unreasonable, based on the record and the § 3553(a) factors. United States v.

Turner, 

, 573 (11th Cir. 2010) (per curiam).

      In reviewing a sentencing decision, we must ensure procedural and

substantive reasonableness. Gall v. United States, 

, 51, 

,

597 (2007). Factors in determining procedural reasonableness include, for

example, whether the district court properly calculated the guideline range and

considered the § 3553(a) factors. 

determine that the sentence is

procedurally reasonable, we must then consider the substantive reasonableness of

the sentence. 

may be substantively unreasonable if, under the


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totality of the circumstances, it does not achieve the purposes stated in § 3553(a).

United States v. Pugh, 

, 1191 (11th Cir. 2008).

      The district court is required to 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). Those purposes are: to reflect the seriousness of the offense; to

promote respect for the law; to provide just punishment for the offense; to deter

criminal conduct; to protect the public from the defendant’s future criminal

conduct; and to effectively provide the defendant with needed training, care, or

treatment. 18 U.S.C. § 3553(a)(2). The district court must also consider the nature

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

kinds of sentences available, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. 

(3)-(7).

      We ordinarily expect a sentence within the guideline range to be reasonable.

United States v. Hunt, 

, 746 (11th Cir. 2008). A sentence imposed

well below the statutory maximum penalty is another indicator of reasonableness.

See United States v. Gonzalez, 

, 1324 (11th Cir. 2008) (per curiam).

Furthermore, the weight given to any specific § 3553(a) factor is committed to the

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

, 743


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(11th Cir. 2007). However, unjustified reliance upon any one of the § 3553(a)

factors may indicate an unreasonable sentence. United States v. Crisp, 

, 1292 (11th Cir. 2006).

      Upon review of the record and consideration of the parties’ briefs, we

affirm. Pena’s 46-month sentence is not substantively unreasonable. The sentence

was both within the guideline range and also significantly lower than the ten-year

statutory maximum penalty. While Pena argues that the district court failed to give

due consideration to his background and characteristics under § 3553(a)(1), the

court expressed sympathy for his difficult family situation and his struggles with

substance abuse. Pena also argues that the court placed undue emphasis on his

criminal history, but the weight accorded to that factor was committed to the sound

discretion of the district court. 

. The court may have

emphasized Pena’s lengthy criminal record and continuing drug use in determining

his sentence, but it did not do so single-mindedly to the detriment of mitigating

§ 3553(a) factors. See 

. The record shows that the court

considered the § 3553(a) factors and chose a sentence it believed to be no longer

than necessary for achieving the purposes set forth in 18 U.S.C. § 3553(a). Pena

has not met his burden to show an abuse of discretion.

      AFFIRMED.




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