[DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                            No. 11-13051                         JAN 11, 2012
                        Non-Argument Calendar                     JOHN LEY
                      ________________________                     CLERK

              D.C. Docket No. 1:11-cr-00016-CAP-GGB-1



UNITED STATES OF AMERICA,

                           llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                   versus

FRANCISCO PIEDRA-DIAZ,
a.k.a. Francisco Piedra,
a.k.a. Francisco Pieda,
a.k.a. Francisco Diaz,
a.k.a. Francisco Piedah,

                           llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                     ________________________

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

                            (January 11, 2012)
Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.

PER CURIAM:

      Appellant Francisco Piedra-Diaz appeals his 24-month sentence imposed by

the district court for illegally reentering the United States after deportation, in

violation of 8 U.S.C. § 1326(a), (b)(2). Piedra-Diaz first argues that in calculating

the enhancement to his offense level based on his conviction for a prior felony, the

district court erred by ignoring the Sentencing Commission’s promulgated

amendments to U.S.S.G. § 2L1.2, which were not in effect at the time of

sentencing. He asserts that, as a result of this alleged error, the court incorrectly

calculated a guideline range of 24 to 30 months’ imprisonment, rather than 12 to

18 months’ imprisonment. Second, he argues that his sentence was substantively

unreasonable because the court failed to give proper weight to the 18 U.S.C.

§ 3553(a) sentencing factors, including deterrence, just punishment, and his

personal history and characteristics, and the sentence was greater than necessary to

achieve the sentencing goals in § 3553(a)(2).

      We review “de novo a district court’s application of the Sentencing

Guidelines.” United States v. Jerchower, 

, 1184 (11th Cir. 2011).

The district court uses the Guidelines Manual in effect on the date of sentencing,

and “if a court applies an earlier edition of the Guidelines Manual, the court shall

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consider subsequent amendments, to the extent that such amendments are

clarifying rather than substantive changes.” U.S.S.G. § 1B1.11(a), (b)(2).

Similarly, “[w]hen reviewing the district court’s application of the sentencing

guidelines, we apply the version of the guidelines in effect on the date of the

sentencing hearing.” United States v. Descent, 

, 707 (11th Cir.

2002). However, we consider subsequent amendments that clarify the Guidelines,

regardless of the date of sentencing, but we will not retroactively apply substantive

amendments to the Guidelines. 

. In determining

whether an amendment is substantive or clarifying, we consider: (1) whether the

amendment alters the text of the Guidelines, suggesting a substantive amendment,

or alters only the commentary, suggesting a clarifying amendment; (2) whether the

Sentencing Commission has described the amendment as clarifying or whether the

“statements in the amendment commentary reflect a substantive change in the

punishment for an offense”; and (3) whether the amendment overturns circuit

precedent, suggesting a substantive amendment. 

      On November 1, 2011, amendments to § 2L1.2(b) took effect that impacted

the specific offense characteristic enhancement for defendants who unlawfully

entered or remained in the United States following felony convictions. See

U.S.S.G. § 2L1.2, historical notes, 2011 Amendments. Prior to the 2011

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amendments, § 2L1.2(b)(1)(B) read: “If the defendant previously was deported, or

unlawfully remained in the United States, after . . . a conviction for a felony drug

trafficking offense for which the sentence imposed was 13 months or less, increase

[the offense level] by 12 levels.” See 

amendments changed this

Guideline provision by adding additional language that provides for a 12-level

increase only if the conviction garners history points under Chapter Four, and if

the conviction does not receive any history points, it results in only an 8-level

increase. See U.S.S.G. § 2L1.2 (2011).

      In this case, the record reflects that the district court used the 2010

Guidelines Manual that was in effect at the time of sentencing, so it was not

required to consider any subsequent amendments in reaching its sentencing

decision. Furthermore, the 2011 Guidelines amendment to § 2L1.2(b)(1)(b),

which was not in effect at the time of Piedra-Diaz’s sentencing, was substantive in

nature, and therefore, we do not apply it retroactively on review. Accordingly, we

conclude that the district court did not err in calculating a guideline range of 24 to

30 months’ imprisonment based on the 2010 Sentencing Guideline Manual that

was in effect at the time of sentencing.

                                           II.

      We review the reasonableness of a sentence under a deferential abuse of

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discretion standard of review. Gall v. United States, 

, 41, 

, 591, 

(2007). The district court is required to “impose a

sentence sufficient, but not greater than necessary, to comply with the purposes”

listed in § 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, protect the public from the defendant’s future criminal conduct,

and provide the defendant with needed educational or vocational training or

medical care. 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 party challenging the

sentence has the burden of establishing that the sentence was unreasonable.

United States v. Talley, 

, 788 (11th Cir. 2005).

      In reviewing the reasonableness of a sentence, we first ensure that the

sentence was procedurally reasonable, meaning that the district court properly

calculated the guideline range, treated the Guidelines as advisory, considered the §

3553(a) factors, did not select a sentence based on clearly erroneous facts, and

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adequately explained the chosen sentence. 

, 128 S. Ct. at 597.

The court must state its reasons for imposing the particular sentence,18 U.S.C.

§ 3553(c), but is not required “to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors,” 

(internal quotation marks omitted). Rather, the

court’s acknowledgment that it has considered the § 3553(a) factors together with

the parties’ arguments is sufficient. See 

determine that a sentence is procedurally sound, we examine

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

circumstances and the § 3553(a) factors. 

only proper “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. Pugh, 

, 1191 (11th Cir. 2008) (internal quotation

marks omitted). The district court’s sentence does not have to be the most

appropriate sentence, but rather “need only be a reasonable one.” United States v.

Irey, 

, 1191 (11th Cir. 2010) (en banc), cert. denied, 

(2011).

      In determining a reasonable sentence, the district court may consider facts

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that have already been taken into account in calculating the defendant’s guideline

range. See United States v. Williams, 

, 1324 (11th Cir. 2008)

(district court could consider defendant’s prior offenses in deciding to impose an

upward variance, even though those offenses were already included in the

defendant’s criminal history score). Further, “the weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district

court.” 

(internal quotation marks and alterations omitted). Although

we do not automatically presume a sentence falling within the guideline range to

be reasonable, we ordinarily expect such a sentence to be reasonable. United

States v. Hunt, 

, 746 (11th Cir. 2008) (quoting U.S. v. Talley, 

, 788 (2005)). Additionally, we have previously found a sentence well

below the maximum sentence available for the offense to be substantively

reasonable. See United States v. Gonzales, 

, 1324 (11th Cir. 2008).

      We conclude from the record that Piedra-Diaz’s sentence was substantively

reasonable. The district court properly considered the § 3553(a) sentencing

factors and Piedra-Diaz’s arguments at sentencing, and the sentencing factors

support the 24-month sentence. Piedra-Diaz has failed to demonstrate that his

bottom-of-the-guideline-range sentence was outside of the range of reasonable

sentences, especially given his three previous deportations and criminal history.

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Accordingly, we affirm Piedra-Diaz’s sentence.

AFFIRMED.




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