[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                        FILED
                                                              U.S. COURT OF APPEALS
                              No. 11-11136                      ELEVENTH CIRCUIT
                          Non-Argument Calendar                    OCTOBER 4, 2011
                        ________________________                     JOHN LEY
                                                                      CLERK
                 D.C. Docket No. 1:10-cr-00392-CAP-JFK-1

UNITED STATES OF AMERICA,

                                  llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                versus

CELERINO OZUNA PALMA,
a.k.a. Celerino Ocuna Palma,
a.k.a. Celerino Ozuna-Palma,

                               llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                        ________________________

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

                               (October 4, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Celerino Palma appeals the procedural and substantive reasonableness of his
50-month sentence for illegal reentry after deportation, in violation of 8 U.S.C.

§ 1326(a) and (b)(2). He argues that his sentence is procedurally unreasonable

because the district court did not meaningfully consider the 18 U.S.C. § 3553(a)

sentencing factors. Palma argues that his sentence is substantively unreasonable

because it: (1) was based almost exclusively on his criminal history; (2) was

unnecessarily harsh; (3) violated the parsimony principle encompassed in

§ 3553(a); (4) was longer than necessary to achieve § 3553(a)’s sentencing goals;

and (5) was based in part on the 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), which was not based on empirical data and double counted

his criminal history. For the reasons set forth below, we affirm Palma’s sentence.

                                           I.

      Palma, a citizen of Mexico, was administratively deported on December 15,

2008, following a 2006 state court conviction for conspiracy to commit murder.

He was later apprehended by Immigration and Customs Enforcement agents in

Atlanta, Georgia on August 6, 2010. There was no evidence that he was granted

permission to reenter the country after being deported. Palma ultimately pleaded

guilty to one count of illegal reentry after deportation.

      Palma’s base offense level was eight, pursuant to U.S.S.G. § 2L1.2. He




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received a 16-level enhancement under § 2L1.2(b)(1)(A)(ii)1 because he was

previously deported after being convicted of a crime of violence, namely,

conspiracy to commit murder. After a 3-level reduction for acceptance of

responsibility, Palma’s total adjusted offense level was 21. He was assigned a

criminal history category of III because he committed the instant offense while on

probation, and he had prior convictions for carrying a concealed weapon, carrying

a deadly weapon at a public gathering, conspiracy to commit murder, and

possession of a firearm or knife during the commission of a felony. As to the

latter two convictions, the presentence investigation report explained that,

according to the indictment, Palma had shot and killed one victim and shot and

injured a second victim. Based on an offense level of 21 and a criminal history

category of III, Palma’s guideline range was 46 to 57 months’ imprisonment, and

the statutory maximum sentence was 20 years’ imprisonment.

       At sentencing, Palma, through counsel, explained that he was apprehended

while at work and that, according to his manager, he was a good, reliable,

hard-working employee. As to his conspiracy to commit murder offense, Palma

had originally been convicted of murder. His conviction was overturned on


       1
        Although U.S.S.G. § 2L1.2(b)(1)(A)(ii) mandates a 16-level enhancement when a
defendant has previously been deported after being convicted of a crime of violence, the
presentence investigation report mistakenly cites § 2L1.2(b)(1)(B).

                                              3
appeal, and on remand, he accepted the state’s plea deal for the offense of

conspiracy to commit murder. He was removed from the country after serving that

sentence, and he illegally reentered the United States in late 2008 or early 2009.

He committed his previous crime ten years ago, when he was 21 years old. Since

returning to the United States, he had met his common-law wife, with whom he

had an infant daughter. Palma then personally addressed the court, apologizing

for illegally reentering the country. He stated that he returned here because of the

poor economic situation in Mexico, and that he was supporting his family in the

United States. Palma’s attorney then asked the court to impose a sentence below

the guideline range.

      The court stated that it considered the expense of imprisoning Palma, the

fact that Palma had not committed any offenses since returning to the United

States, the seriousness of Palma’s conviction for conspiracy to commit murder, the

speed with which he had illegally returned to the United States, and the need to

deter Palma from committing future crimes. The court then sentenced Palma to 50

months’ imprisonment and 3 years’ supervised release. The court then further

explained its sentence, emphasizing that Palma had a significant criminal history

and that the chosen sentence would “appropriately punish” Palma and deter him

from committing further crimes. The court stated that it had considered the

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§ 3553(a) factors, particularly deterrence.

                                          II.

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

discretion standard. Gall v. United States, 

, 41, 

, 591,

(2007). Under the abuse of discretion standard, a sentence will

be affirmed “unless we find that the district court has made a clear error of

judgment.” United States v. Frazier, 

, 1259 (11th Cir. 2004) (en

banc). “[W]e will not second guess the weight (or lack thereof) that the [district

court] accorded to a given factor . . . as long as the sentence ultimately imposed is

reasonable in light of all the circumstances presented.” United States v. Snipes,

, 872 (11th Cir. 2010) (quotation omitted), cert. denied, 

(U.S. June 6, 2011) (No. 10-1075).

      In reviewing the reasonableness of a sentence, we conduct a two-step

review, first ensuring that the sentence was procedurally reasonable, meaning that

the district court properly calculated the guideline range, treated the guideline

range as advisory, considered the § 3553(a) factors, did not select a sentence based

on clearly erroneous facts, and “adequately explain[ed] the chosen sentence.”

, 128 S.Ct. at 597. At the time of sentencing, the court must

state its reasons for imposing a particular sentence. 18 U.S.C. § 3553(c).

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However, the court 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.” United States v. Scott, 

, 1329 (11th Cir. 2005). A court’s

acknowledgment that it has considered the § 3553(a) factors and the parties’

arguments is usually sufficient. United States v. Talley, 

, 786 (11th

Cir. 2005).

      Once we determine that a sentence is procedurally sound, we must examine

whether the sentence was substantively reasonable in light of the record and the

§ 3553(a) factors. 

The district court is required to “impose a sentence

sufficient, but not greater than necessary, to comply with the purposes set forth in”

18 U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a). These purposes include the need to

reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. 

The court must also

consider the nature and circumstances of the offense, the defendant’s history and

characteristics, 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).

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      We ordinarily expect a sentence within the guideline range to be reasonable.

United States v. Gonzalez, 

, 1324 (11th Cir. 2008). The

reasonableness of a sentence may also be indicated when the sentence imposed is

well below the statutory maximum sentence. See 

of sentencing “is to

lock in a sentence that is not too short and not too long, but just right to serve the

purposes of § 3553(a).” United States v. Irey, 

, 1197 (11th Cir.

2010) (en banc), cert. denied, 

(2011). We have criticized the use

of the term “parsimony principle” because “it tends to slant the discussion toward

shorter sentences by emphasizing only” the need to avoid sentences that are too

long. 

challenging a sentence bears the burden of establishing that it

is unreasonable. 

.

      In United States v. Adeleke, 

, 1160-61 (11th Cir. 1992), we

upheld the enhancements set forth in § 2L1.2(b)(1) because: (1) they rationally

promote the policy of deterring aliens who are also convicted felons from

reentering the United States; and (2) they do not result in improper double

counting because the Sentencing “Commission clearly intended prior felonies to

count against defendants under both the criminal history section and § 2L1.2.”

Furthermore, a guideline section is not invalid simply because it may not be based

on empirical evidence. 

. Rather, a lack of empirical

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evidence is merely one factor that a district court can consider in exercising its

right to depart from the guideline range. 

is both procedurally and substantively reasonable. As to

procedural reasonableness, the court properly calculated the guideline range,

treated that range as advisory, stated that it considered the § 3553(a) factors, and

explained which factors most influenced its decision to impose a 50-month

sentence. Contrary to Palma’s argument that the court did not meaningfully

consider the § 3553(a) factor, the court explained that it had considered a number

of factors, including the fact that Palma had not been arrested since returning to

the United States, the seriousness of his most recent conviction, his rapid return to

the United States after being deported, the need to deter him from committing

other crimes, and the need for appropriate punishment.

      Palma’s sentence is also substantively reasonable in light of the record and

the § 3553(a) factors. The court’s sentence of 50 months is within the applicable

guideline range of 46 to 57 months and well below the 20-year statutory maximum

penalty, and we ordinarily expect such a sentence to be reasonable. See 

. The sentence, moreover, met the goals encompassed within

§ 3553(a). Palma was deported in 2008 after being convicted of conspiracy to

commit murder and possession of a firearm or knife during the commission of a

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felony. He illegally reentered the country soon after being deported and while still

on probation for the foregoing convictions. Considering Palma’s criminal history

and disregard for the criminal and immigration laws of the United States, a

sentence within the guideline range was necessary to promote respect for the law,

provide just punishment, deter Palma from further criminal activity, and protect

the public. Due to the seriousness of Palma’s criminal history and the speed with

which he illegally returned to the United States after previously being deported, a

lower sentence was not warranted, and Palma’s parsimony principle argument

fails. See 

. Therefore, Palma’s ultimate sentence was

reasonable, and we will not re-weigh the § 3553(a) factors. See 

.

      Palma’s arguments as to the 16-level enhancement contained in § 2L1.2 are

meritless. This enhancement is justified because it deters aliens who are convicted

felons from returning to the United States. See 

.

Furthermore, the enhancement is not impermissible double counting because the

Sentencing Commission intended for prior felonies to result in both an increased

criminal history score and a § 2L1.2(b)(1) enhancement. See 

. Finally, Palma’s argument that § 2L1.2 is not based on empirical data does

not change the result because: (1) a guideline section need not be invalidated

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because it is not based on empirical data; and (2) while the district court may

impose a variance because a guideline section is not based on empirical data, it is

not required to do so. See 

. Based on the above, Palma’s

sentence was procedurally and substantively reasonable.

      For the foregoing reasons, we affirm Palma’s sentence.

      AFFIRMED.




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