Case: 13-15890   Date Filed: 08/26/2014   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15890
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:13-cr-60201-RSR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JUAN DAVID ESCUDERO BARRERA,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 26, 2014)

Before TJOFLAT, PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 13-15890   Date Filed: 08/26/2014    Page: 2 of 5


      Juan David Escudero Barrera (“Barrera”) appeals his 57-month sentence,

imposed at the low end of the advisory guideline range, after pleading guilty to one

count of reentry of a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2). On

appeal, Barrera argues that the district court erroneously believed that it lacked

authority to depart downward under the Sentencing Guidelines on the basis of

cultural assimilation. He contends that, had the court known of its authority, he

would have received a shorter sentence. Barrera also argues that his sentence was

substantively unreasonable in light of the factors in 18 U.S.C. § 3553(a), because

the court placed undue weight on his criminal history and failed to consider

mitigating factors.

           I.      Failure to Depart Downward for Cultural Assimilation


      We lack jurisdiction to consider a defendant’s appeal of a discretionary

decision of the district court to not apply a downward departure. United States v.

Winingear, 

, 1245 (11th Cir. 2005). However, we may review de

novo a claim that the district court mistakenly believed that it lacked authority to

grant such a departure. United States v. Mignott, 

, 1289 (11th Cir.

1999). When nothing in the record indicates otherwise, we assume that the district

court understood that it had the authority to depart downward. United States v.

Dudley, 

, 1228 (11th Cir. 2006).



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       Contrary to Barrera’s arguments, nothing in the record suggests that the

district court mistakenly believed that it lacked authority to grant a downward

departure. See 

; 

. The

statement upon which Barrera relies—that missing family members did not

constitute justification for returning to this country in violation of the law—means

precisely that: Barrera’s conduct is not rendered legal because of his family

situation.


                         II.    Substantive Reasonableness


      We review the reasonableness of a final sentence imposed by a district court

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

, 41, 

, 591, 

(2007). We first ensure that the

district court committed no significant procedural error, and then examine whether

the sentence was substantively reasonable in light of the totality of the

circumstances. 

128 S.Ct. at 597. Although we do not presume that a

sentence falling within the guideline range is reasonable, we ordinarily expect such

a sentence to be reasonable. United States v. Hunt, 

, 746 (11th Cir.

2008). The party who challenges the sentence bears the burden of showing that the

sentence is unreasonable in light of the record and the § 3553(a) factors. United

States v. Tome, 

, 1378 (11th Cir. 2010).


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      The district court must impose a sentence “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, promote respect for the law,

provide just punishment for the offense, deter criminal conduct, and protect the

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

In imposing a particular sentence, the court must also consider the nature and

circumstances of the offense, 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 unwarranted

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

(3)-(7).

      The weight given to any specific § 3553(a) factor is committed to the sound

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

, 743 (11th Cir.

2007). A court can abuse its discretion when it (1) fails to consider relevant factors

that were due significant weight, (2) gives an improper or irrelevant factor

significant weight, or (3) commits a clear error of judgment by balancing the

proper factors unreasonably. United States v. Irey, 

, 1189 (11th Cir.

2010) (en banc). Moreover, a district court’s unjustified reliance on any one

§ 3553(a) factor may be a symptom of an unreasonable sentence. United States v.

Crisp, 

, 1292 (11th Cir. 2006). However, an acknowledgment by the


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court that it considered the § 3553(a) factors is sufficient, and it need not discuss

each factor expressly. United States v. Garza-Mendez, 

, 1290 (11th

Cir. 2013).

      Barrera’s 57-month sentence is reasonable. The sentence is supported by the

record and meets the goals encompassed within 18 U.S.C. § 3553(a). Although

Barrera argues that the court placed undue emphasis on his criminal history

without properly considering mitigating factors, the record shows that the court

expressly acknowledged positive aspects of Barrera’s recent life changes.

Nonetheless, the court concluded that it could not overlook his extensive and

violent criminal history. In addition, the court stated that it had listened to the

parties’ arguments and considered the § 3553(a) factors in imposing the sentence.

See 

. Accordingly, Barrera fails to demonstrate

that the sentence is unreasonable in light of the record and the § 3553(a) factors.

.

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

affirm.


      AFFIRMED.




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