Case: 13-15283    Date Filed: 12/30/2014   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15283
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:13-cr-00008-TCB-RGV-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

JUAN FERNANDO TABOADA-SAMANO,
a.k.a. Manuel Lopez Lopez,
a.k.a. Juan Taboada-Samano,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (December 30, 2014)

Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Juan Taboada-Samano appeals his below-guideline-range 41-month
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sentence of imprisonment, imposed for being unlawfully within the United States

after previously having been deported. On appeal, Taboada-Samano challenges his

sentence as substantively unreasonable, arguing that the sentence was

unreasonably increased based on a 15-year-old offense that was within days of not

counting towards his criminal history. After careful review, we affirm.

                                         I.

      Taboada-Samano, a native and citizen of Mexico, was found unlawfully in

the United States on March 7, 2013, despite having been deported from the United

States in 1998. He was found in a county jail in Georgia after being arrested on

state charges of possession with intent to distribute methamphetamine and

possession of a firearm during the commission of a felony. A federal grand jury

indicted Taboada-Samano on one count of being unlawfully within the United

States after previously having been deported, in violation of 8 U.S.C. § 1326(a),

(b)(2). Taboada-Samano pled guilty without a written agreement.

      The probation officer prepared a presentence investigation report (“PSR”),

assigning Taboada-Samano a base offense level of eight, pursuant to United States

Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(a). The probation officer

then added sixteen levels under § 2L1.2(b)(1)(A) because Taboada-Samano had

been deported after a conviction for a felony drug-trafficking offense for which the

sentence exceeded thirteen months.       Specifically, Taboada-Samano had been



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convicted of possession with intent to sell heroin in April 1997, sentenced to two

years’ imprisonment, and subsequently deported. The probation officer subtracted

three levels for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b),

resulting in a total offense level of 21.

      Taboada-Samano was assigned six criminal history points, which

corresponded to a criminal-history category of III. In addition to the 1997 heroin

conviction, Taboada-Samano had two 2003 convictions in state court for first-

degree forgery, as well as convictions for the methamphetamine and firearm

offenses that gave rise to this case. Based on an offense level of 21 and a criminal-

history category of III, Taboada-Samano’s guideline range was 46 to 57 months of

imprisonment.

      Taboada-Samano filed objections to his criminal-history category.           He

conceded that the point tally for his criminal-history score was correct, but he

argued that counting his 1997 conviction overstated the severity of his criminal

history.   He therefore requested a downward departure to a criminal-history

category of II, which would have resulted in a guideline range of 41 to 51 months’

imprisonment, and he stated that a sentence at the low end of the reduced range

would have been reasonable. In addressing Taboada-Samano’s objections, the

probation officer noted “that if the [1997] offense conduct occurred 17 days later,

the total offense level would have been 17 and his criminal history category would



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have been II resulting in a custody guideline range of 27 to 33 months.” 1

       At sentencing, Taboada-Samano again argued that his criminal history

category was overstated. He explained that the 1997 conviction was several days

from being too old to count for purposes of calculating his criminal-history

category. Without using the 1997 conviction, Taboada-Samano asserted, he would

have received a criminal-history category of II, which was reasonable in this case,

and with that category he would “still be facing 41 months in custody on the low

end” of the guideline range.           The district court overruled Taboada-Samano’s

objection because “at some point we have to have a cut-off,” but stated that it

would “remember at sentencing that he barely made category [III]” and that the

age of the offense was significant. The government argued for a sentence in the

middle of the guideline range of 46 to 57 months’ imprisonment.

       In sentencing Taboada-Samano, the district court stated that what Taboada-

Samano did in 1997 was “really bad,” and that his 2013 conviction was bad as

well, but that Taboada-Samano went a long time “without doing anything of that

nature.” Stating that it hoped the sentence would effectively deter him from future

criminal conduct, the court sentenced Taboada-Samano to 41 months of

imprisonment. This appeal followed.
       1
           The difference in the offense level resulted from the operation of § 2L1.2(b)(1)(A),
which provides that the sixteen-level enhancement applies only if the prior qualifying conviction,
for which the sentence exceeds thirteen months, receives criminal-history points for purposes of
calculating a defendant’s criminal-history category. If the prior conviction does not receive
criminal-history points, a twelve-level enhancement applies instead. U.S.S.G. § 2L1.2(b)(1)(A).


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                                         II.

      Taboada-Samano argues that the district court’s 41-month sentence of

imprisonment is substantively unreasonable because the sixteen-level enhancement

under § 2L1.2(b)(1)(A) was unreasonably applied and lacks empirical support, and

because the court overemphasized his criminal history and did not take into

account his personal history and characteristics.

      We review the substantive reasonableness of a sentence using a deferential

abuse-of-discretion standard. United States v. Irey, 

, 1165 (11th Cir.

2010) (en banc). We will vacate a sentence only if “we are left with the definite

and firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” 

(internal

quotation marks omitted). But we will not “set aside a sentence merely because we

would have decided that another one is more appropriate.” 

The party

challenging the sentence bears the burden of showing that it is unreasonable in

light of the record and § 3553(a) factors. United States v. Langston, 

, 1236 (11th Cir. 2009).

      The district court must impose a sentence “sufficient, but not greater than

necessary” to comply with the purposes of 18 U.S.C. § 3553(a)(2). 18 U.S.C.

§ 3553(a).   These purposes include the need for a sentence to reflect the



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seriousness of the offense, promote respect for the law, provide just punishment,

deter criminal conduct, and protect the public from future criminal conduct. 

Additional considerations include the nature and circumstances of

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

guideline range, and the pertinent policy statements of the Sentencing

Commission. 

(3)-(7). The district court must consider these

factors in imposing sentence, but the court has the discretion to determine the

weight given to any particular § 3553(a) factor and does not need to discuss each

factor. United States v. Williams, 

, 1322 (11th Cir. 2008).

       The district court did not abuse its discretion in sentencing Taboada-Samano

to 41 months of imprisonment. 2             The fact that his sentence fell below the

applicable guideline range indicates that it was reasonable, because we ordinarily

expect that a sentence within the guideline range is reasonable. United States v.

Alfaro-Moncada, 

, 735 (11th Cir. 2010). And the court specifically

discussed the seriousness of Taboada-Samano’s prior convictions and the need to

deter him from future criminal activity. See 18 U.S.C. § 3553(a). The defendant’s


       2
           The government argues that we should not review the reasonableness of Taboada-
Samano’s sentence at all—because he invited any error in that respect by requesting the 41-
month sentence he received—or that we should review for only plain error. We decline to
decide whether Taboada-Samano invited any error as to his sentence or whether plain-error
review applies because, in any case, he has failed to carry his burden to demonstrate that his
sentence was substantively unreasonable in light of the record and the § 3553(a) factors. United
States v. Victor, 

, 1291 n.3 (11th Cir. 2013); see 

; 

.


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assertion that the district court placed undue negative emphasis on his criminal

history is unavailing. In fact, the record is clear that the district court, despite

overruling Taboada-Samano’s objection, expressly took into account the age of the

conviction and its effect on his criminal-history category. The court stated that it

found the age of the 1997 conviction to be “significant,” noted that Taboada-

Samano was barely in the criminal-history category of III, and then varied

downward from the guideline range to the low end of the range that, according to

Taboado-Samano, would have applied if he had been in a criminal-history category

of II.

         Although the sixteen-level enhancement under § 2L1.2(a)(1)(A) is

substantial, Taboada-Samano has not shown that the court unreasonably applied it.

He contends that the enhancement lacks empirical support, but we have held that

the enhancement was rationally “designed to deter aliens who have been convicted

of a felony from re-entering the United States.” United States v. Adeleke, 

, 1161 (11th Cir. 1992). And while the lack of empirical support for a

guideline adjustment may provide reason for a district court to vary downward

from the guideline range, it does not compel that result. See United States v.

Snipes, 

, 870 (11th Cir. 2010) (“[T]he absence of empirical evidence

is not an independent ground that compels the invalidation of a guideline.”); see

also Kimbrough v. United States, 

, 109-10, 

, 575 (2007).



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      Tabaoda-Samano further argues that, based on the Ninth Circuit’s opinion in

United States v. Amezcua-Vasquez, 

, 1055-56 (9th Cir. 2009), the

routine application of the § 2L1.2(b)(1)(A) enhancement based on a stale

conviction is unreasonable. But even if Amezcua-Vasquez were binding, which it

obviously is not, it is distinguishable because, in that case, the district court failed

to take into account the “staleness of the prior conviction and [the defendant’s]

subsequent lack of any other convictions for violent crimes.” 

. Here, by contrast, the court expressly took into account the age

of the conviction.     Moreover, despite the age of the 1997 drug-trafficking

conviction, Taboada-Samano’s criminal history was significant and showed a

pattern of reoffending, including a conviction in 2013 for possession with intent to

distribute methamphetamine. See 18 U.S.C. § 3553(a)(1), (2).

      Taboada-Samano’s remaining arguments—that he has a history of working

hard, that he is regretful, and that his conviction in this case arose out of his

commitment to reunite with his family in the United States—do not compel the

conclusion that the district court committed a clear error of judgment in weighing

the § 3553(a) factors. See 

. The district court’s below-

guideline-range sentence of 41 months of imprisonment fell within the range of

reasonable sentences based on the totality of the circumstances and the relevant

§ 3553(a) sentencing factors. Accordingly, we affirm.



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AFFIRMED.




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