[DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 07-15316                 ELEVENTH CIRCUIT
                                                                 JUNE 3, 2008
                            Non-Argument Calendar
                                                              THOMAS K. KAHN
                          ________________________
                                                                   CLERK

                   D. C. Docket No. 07-00086-CR-T-30-TGW

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

ARMANDO MACIAS-ORTIZ,

                                                         Defendant-Appellant.
                          ________________________

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

                                  (June 3, 2008)

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Armando Macias-Ortiz appeals his 63-month sentence for conspiracy to

distribute and to possess with intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B)(ii)(II) (Count I), possession

with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(ii)(II) (Count III), and illegally entering the United States,

in violation of 8 U.S.C. §§ 1325(a)(1) and 1329 (Count V). Macias-Ortiz argues on

appeal that his low-end Guidelines sentence is substantively unreasonable. After

thorough review, we affirm.

       Generally, we review a sentence a district court imposes for “reasonableness,”

which “merely asks whether the trial court abused its discretion.” United States v.

Pugh, 

, 1189 (11th Cir. 2008) (quoting Rita v. United States, 

, 2465 (2007)).1 In reviewing sentences for reasonableness, we perform two

steps. 

. First, we must “‘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 -- including an explanation for

any deviation from the Guidelines range.’” 

v. United States, 128




       1
          Though the Government claims plain error review is appropriate where, as here, a defendant
raises a reasonableness argument for the first time on appeal, we need not decide whether plain error
review is proper, as we reach the same outcome under either standard.

                                                 

, 597 (2007)).2 If we conclude that the district court did not procedurally

err, we must consider the “‘substantive reasonableness of the sentence imposed, under

an abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” 

, 128 S. Ct. at 597). “The party who challenges the sentence bears the

burden of establishing that the sentence is unreasonable in the light of both th[e]

record and the factors in section 3553(a).” United States v. Thomas, 

,

1351 (11th Cir. 2006) (internal quotation omitted).

       Macias-Ortiz has not demonstrated that his sentence is substantively

unreasonable.3 As an initial matter, the district court applied a two-level minor-role

reduction pursuant to U.S.S.G. § 3B1.2(b) based upon its finding that Macias-Ortiz

was less culpable than the other co-defendants. Thus, Macias-Ortiz’s contention that

the court failed to properly take into account his role in the offense is without merit.

       Moreover, the district court said that it had considered the Section 3553(a)

factors, and the record reflects that the court was aware of, and applied, those factors.

       2
           The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
       3
         In his brief, Macias-Ortiz concedes that the district court correctly calculated his Guidelines
range, and thus, does not challenge the procedural reasonableness of the sentence.

                                                   3
Specifically, the district court considered Macias-Ortiz’s history and characteristics

and the nature and circumstances of the offense, noting that: (1) Macias-Ortiz’s

participation in the drug transaction was minimal; (2) Macias-Ortiz did not use

violence or threats of violence during the drug transaction; (3) Macias-Ortiz had not

been truthful regarding his awareness of whether his codefendant was armed during

the drug transaction; and (4) Macias-Ortiz had two small children and health issues,

and had expressed remorse. See 18 U.S.C. § 3553(a)(1). The court also recognized

the advisory Guidelines range. See 18 U.S.C. § 3553(a)(4).

      Indeed, “the district court need only acknowledge that it considered the §

3553(a) factors, and need not discuss each of these factors in either the sentencing

hearing or in the sentencing order.” United States v. Amedeo, 

, 833

(11th Cir.), cert. denied, 

(2007) (internal quotation and punctuation

omitted); United States v. Scott, 

, 1329 (11th Cir. 2005) (“nothing in

Booker or elsewhere requires the district court 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”). This is especially true here, where Macias-Ortiz failed to contest a

Guidelines-range sentence based upon the § 3553(a) factors he discusses in his brief,

and where Macias-Ortiz’s 63-month sentence was at the low end of the Guidelines

range, and well below the 40-year statutory maximum. 21 U.S.C. § 841(b)(1)(B)(ii);

                                          4
United States v. Talley, 

, 788 (11th Cir. 2005); United States v.

Winingear, 

, 1246 (11th Cir. 2005) (comparing, as one indication of

reasonableness, the actual prison term imposed against the statutory maximum).4

       Accordingly, Macias-Ortiz has not shown that his sentence was unreasonable,

nor that the district court committed any error, much less plain error, in imposing it.

We therefore affirm his sentence.

       AFFIRMED.




       4
         See also 

(holding that a court of appeals may afford a presumption
of reasonableness to a within-Guidelines sentence); United States v. Campbell, 

, 1314
n.8 (11th Cir. 2007) (noting that, although we have not normally afforded a within-Guidelines
sentence a presumption of reasonableness, the Rita decision calls that policy into question).

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