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United States v. Eber Altube-Fuentes, 07-13336 (2008)

Court: Court of Appeals for the Eleventh Circuit Number: 07-13336 Visitors: 17
Filed: Jan. 23, 2008
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT JANUARY 23, 2008 THOMAS K. KAHN No. 07-13336 CLERK Non-Argument Calendar _ D. C. Docket No. 07-20109-CR-DLG UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EBER ALTUBE-FUENTES, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (January 23, 2008) Before TJOFLAT, BLACK and PRYOR, Circuit Judges. PER CURIAM: Eber
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                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                    JANUARY 23, 2008
                                                    THOMAS K. KAHN
                              No. 07-13336
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                    D. C. Docket No. 07-20109-CR-DLG

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

EBER ALTUBE-FUENTES,

                                                      Defendant-Appellant.

                        ________________________

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

                             (January 23, 2008)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

     Eber Altube-Fuentes appeals his sentence of 71 months of imprisonment
following a plea of guilty to illegal reentry following a felony conviction. See 8

U.S.C. §§ 1326(a), (b)(2). Altube-Fuentes argues that his sentence, which is within

the guideline range of 57 to 71 months, is unreasonable because it is more severe

than necessary to fulfill the statutory goals of the Sentencing Reform Act. See 18

U.S.C. § 3553(a). He argues that the district court failed to consider adequately his

mitigating factors and relied too heavily on the single factor of his repeated illegal

entry into the United States. We disagree and affirm.

      We review a sentence for reasonableness, United States v. Talley, 
431 F.3d 784
, 785 (11th Cir. 2005), which is “a deferential abuse-of-discretion standard,”

Gall v. United States, 
128 S. Ct. 586
, 598 (2007). We “must first ensure that the

district court committed no significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” 
Gall, 128 S. Ct. at 597
. We then “consider the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard.” 
Id. “[W]hen the
district

court imposes a sentence within the advisory Guidelines range, we ordinarily will

expect that choice to be a reasonable one.” 
Talley, 431 F.3d at 788
.

      The district court did not abuse its discretion. The district court sentenced



                                           2
Altube-Fuentes after careful consideration of Altube-Fuentes’s arguments in favor

of mitigation, the advisory sentencing Guidelines, and the sentencing factors of

section 3553(a). The district court stated that Altube-Fuentes’s criminal history

and repeated reentry after deportation established that “Mr. Altube, for whatever

reason, doesn’t seem to get the message that he is not authorized to be in the

country.” We have consistently concluded that recidivism is not only a proper

reason to increase a sentence, but the most ubiquitous reason. See United States v.

Burge, 
407 F.3d 1183
, 1188 (11th Cir. 2005). Altube-Fuentes’s sentence within

the advisory guidelines range was reasonable.

      Altube-Fuentes’s sentence is AFFIRMED.




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Source:  CourtListener

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