Case: 15-14140    Date Filed: 09/28/2016   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14140
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 2:15-cr-14026-RLR-6



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

KUMAR SAHADEO,

                                                           Defendant-Appellant.

                       ________________________

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

                             (September 28, 2016)

Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Defendant Kumar Sahadeo appeals his 27-month sentence, imposed after he

pleaded guilty to illegal reentry of a deported alien, in violation of 8 U.S.C.

§ 1326(a), (b)(2). On appeal, Defendant argues that his sentence is substantively

unreasonable in light of the 18 U.S.C. § 3553(a) factors. He further asserts that the

district court unreasonably denied his motion for a downward variance. After

careful review, we affirm.

I. BACKGROUND

      In June 2014, Defendant, a native and citizen of Guyana, was removed from

the United States. Defendant was later arrested in Florida in March 2015 in

connection with an alien smuggling investigation. Following his arrest, Defendant

admitted that he had been deported twice previously: in 1999 and 2014.

      Defendant subsequently pleaded guilty to one count of illegal reentry of a

deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2). The Presentence

Investigation Report (“PSR”) assigned Defendant a base offense level of 8,

pursuant to U.S.S.G. § 2L1.2(a). Defendant received a 12-level enhancement

under § 2L1.2(b)(1)(A)(ii) because he was previously deported after two

convictions for crimes of violence that did not receive any criminal history points.

With a two-level reduction for acceptance of responsibility, Defendant’s total

offense level was 18. Based on a total offense level of 18 and a criminal history

category of I, Defendant’s guideline range was 27 to 33 months’ imprisonment.


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      Defendant filed a motion for a downward variance. He asserted that the

§ 3553(a) factors supported a downward variance because he had a tough

childhood, he was an “avid father,” and his prison sentence would be more severe

due to his status as a non-citizen.

      At sentencing, the district court addressed Defendant’s challenge to the

Government’s decision not to move for an additional one-point reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1(b). Defendant argued that he

was being penalized for having exercised his right to consult an immigration

attorney before pleading guilty. The Government responded that it did not move

for the additional one-point reduction because it had spent significant effort

preparing for trial, as Defendant did not inform the Government of his intentions to

plead guilty until the week of trial. The district court overruled Defendant’s

objection.

      Defendant then renewed his request for a downward variance based on his

tough upbringing and the disadvantages he would face in prison because he was

not a U.S. citizen. Citing the § 3553(a) factors, the district court denied

Defendant’s request for a downward variance. The district court consequently

sentenced Defendant to 27 months’ imprisonment.




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II. DISCUSSION

       Using a two-step process, we review the reasonableness of a district court’s

sentence for abuse of discretion. United States v. Cubero, 

, 892 (11th

Cir.), cert. denied, 

(2014). We first look to whether the district

court committed any procedural error, and then we examine whether the sentence

is substantively reasonable in light of the totality of the circumstances and the 18

U.S.C. § 3553(a) factors.1 

challenging the sentence bears the burden

of showing that it is unreasonable. United States v. Pugh, 

, 1189

(11th Cir. 2008). We will only vacate a defendant’s sentence 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.” United

States v. Irey, 

, 1190 (11th Cir. 2010) (quotation omitted).

       Here, Defendant has not shown that his sentence is substantively

unreasonable. At the outset, we expect Defendant’s 27-month sentence—which is

at the low end of the advisory guideline range—to be reasonable. See United

1
  The § 3553(a) 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 with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines 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 victims. 18 U.S.C. § 3553(a).

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States v. Hunt, 

, 746 (11th Cir. 2008) (“Although we do not

automatically presume a sentence within the guidelines range is reasonable we . . .

expect a sentence within the Guidelines range to be reasonable.” (quotation

omitted)). Moreover, his 27-month sentence was well below the 20-year statutory

maximum sentence under 8 U.S.C. § 1326(b)(2). See United States v. Gonzalez,

, 1324 (11th Cir. 2008) (suggesting that a sentence well below the

statutory maximum is an indicator of reasonableness).

      Contrary to Defendant’s arguments, the § 3553(a) factors did not support a

downward variance. As noted by the district court, a downward variance was not

warranted based on the nature and characteristics of the offense, the need for the

sentence to reflect the seriousness of the offense, the need to promote respect for

the law and afford adequate deterrence, and the need to protect the public from

further crime. Indeed, Defendant had a lengthy criminal history, including

convictions for burglary, armed burglary, and aggravated battery. Also, this was

the second time Defendant had illegally reentered the United States after being

deported. Given that he reentered the United States less than one year after his

most recent deportation suggests a need for deterrence and to promote respect for

the law. See 18 U.S.C. § 3553(a)(2). It was entirely within the district court’s

discretion to assign more weight to these factors than to Defendant’s mitigating

circumstances. See United States v. Clay, 

, 743 (11th Cir. 2007)


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(“The weight to be accorded any given § 3553(a) factor is a matter committed to

the sound discretion of the district court.” (quotations omitted)).

      Further, Defendant’s argument regarding the disparate treatment and

prolonged detention that he would suffer due to his alien status does not necessitate

a downward variance because all defendants convicted of illegal reentry are non-

citizens, and thus would be subject to the same treatment as Defendant. We are

also not persuaded by Defendant’s argument that the district court should have

imposed a downward variance because the Government failed to file a motion for

an additional one-level reduction under U.S.S.G. § 3E1.1(b). Defendant took two

months to obtain immigration advice and did not confirm his decision to plead

guilty until one week before trial. Because the Government expended significant

time and energy in preparing for trial, the district court was within its discretion not

to consider the unavailability of an additional reduction for acceptance of

responsibility. Cf. United States v. Bourne, 

, 1446–47 (11th Cir.

1997) (explaining that an additional one-level acceptance-of-responsibility

reduction was not warranted where the defendant’s guilty plea was not timely).

      In short, Defendant has not met his burden of showing that the district court

abused its discretion by imposing a 27-month sentence. Accordingly, Defendant’s

sentence is AFFIRMED.




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