Case: 14-13788    Date Filed: 09/18/2015   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13788
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:14-cr-00007-WCO-JCF-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

FRANCISCO VARGAS-GONZALEZ,

                                                           Defendant-Appellant.

                       ________________________

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

                             (September 18, 2015)

Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

PER CURIAM:
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      Francisco Vargas-Gonzalez appeals his 24 month sentence, imposed at the

low end of the advisory guidelines range, for one count of illegal reentry after

deportation. He contends that the sentence is substantively unreasonable.

                                          I.

      Vargas-Gonzalez, a citizen of Mexico, pleaded guilty to illegal reentry after

deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). The presentence

investigation report (PSR) recommended a total offense level of 13 and a criminal

history category of IV, resulting in an advisory guidelines range of 24 to 30 months

imprisonment. The statutory maximum for the offense is 20 years.

      The PSR detailed Vargas-Gonzalez’s criminal history. In 2004, he pleaded

guilty in Clayton Country, Georgia to driving under the influence, improper lane

change, and driving without a valid license. He was sentenced to one day in

custody and a term of probation. In 2008, he pleaded guilty in Hall County,

Georgia to forgery in the first degree (for possessing a forged driver’s license with

a false name), giving false information to a law enforcement officer, a violation of

the Family Violence Act (for intentionally causing bodily harm to a female he

lived with at the time), and cruelty to children in the third degree (for allowing a

child under the age of 18 to witness the act of violence). He was sentenced to five

years imprisonment, with six months to be served in custody and the balance

probated. In November 2008, he was deported to Mexico.


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      In January 2012, Vargas-Gonzalez was arrested again in Hall County,

Georgia and charged with, among other things, driving without a license and

giving false information to a police officer. He pleaded guilty and was deported

for a second time on February 21, 2012.

      About nine months later, in November 2012, Vargas-Gonzalez was arrested

yet again in Hall County, Georgia. This time he was charged with aggravated

assault (for pulling a knife on his girlfriend in their home), two counts of cruelty to

children in the third degree (for allowing two children under the age of 18 to

witness the assault), and possession of a knife during the commission of a felony.

He was sentenced in state court to one year imprisonment and nine years

probation. On December 4, 2013, he was transferred to ICE custody and, on

February 20, 2014, he was indicted on the instant charge and made his first

appearance in the district court.

      At sentencing, both parties confirmed that they had no objections to the

PSR. Vargas-Gonzalez asked the court to “depart downward” from the low end of

the advisory guidelines range (i.e., 24 months) as a way of “giv[ing] him credit”

for the 2 months and 20 days of time he had served between December 4, 2013,

when he was first taken into ICE custody, and February 20, 2014, when he was

indicted. The government responded that a sentence in the middle of the advisory

guidelines range (i.e., 27 months) would be a reasonable sentence to deter another


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illegal reentry, to promote respect for the law, and to protect the public. The

government also noted that “the [c]ourt could account for [the 2 months and 20

days spent in ICE custody] by simply sentencing [him] to . . . 24 months.”

      The court sentenced Vargas-Gonzalez to 24 months imprisonment and 3

years supervised release. The court stated that it had considered all of the 18

U.S.C. § 3553(a) factors and that it believed that 24 months was an adequate

sentence to deter another illegal reentry.

                                             II.

      Vargas-Gonzalez argues that his sentence is substantively unreasonable

because the district court did not adjust the sentence to account for the 2 months

and 20 days he spent in ICE custody.

      We review the reasonableness of a sentence for an abuse of discretion. Gall

v. United States, 

, 41, 

, 591 (2007). We will not vacate a

sentence as substantively unreasonable unless we are left with the definite and firm

conviction that the district court clearly erred in weighing the § 3553(a) factors and

imposed a sentence outside the range of reasonable sentences dictated by the facts

of the case. United States v. Irey, 

, 1190 (11th Cir. 2010) (en banc).

The party challenging the sentence bears the burden of showing it is unreasonable

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

, 573 (11th Cir. 2010).


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      Vargas Gonzalez’s low-end of the guidelines sentence is not so long that it is

substantively unreasonable. The record does not reflect whether the district court

specifically accounted for the 2 months and 20 days he spent in ICE custody, but

that does not matter. The court stated that it had considered all of the § 3553(a)

factors and explained that deterrence was an important factor in light of Vargas-

Gonzalez’s multiple reentries. The sentence is at the low end of the advisory

guidelines range and well below the statutory maximum of 20 years, both of which

are indicators of reasonableness. See United States v. Hunt, 

, 746

(11th Cir. 2008) (“[W]e ordinarily expect a sentence within the [g]uidelines range

to be reasonable.”) (internal quotation marks and alterations omitted); see also

United States v. Gonzalez, 

, 1324 (11th Cir. 2008) (holding that a

sentence was reasonable in part because it was well below the statutory maximum).

In sum, Vargas-Gonzalez has failed to meet his burden of showing that a 24 month

sentence is unreasonably long in light of the § 3553(a) factors and the facts of his

case. See 

n.16.

      AFFIRMED.




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