Case: 13-12557   Date Filed: 06/23/2014   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-12557
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:07-cr-00167-JOF-JFK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

FLORENTINO CASTENADA-PALAEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 23, 2014)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Florentino Castenada-Palaez appeals his 24-month sentence, which he

received upon revocation of his supervised release, pursuant to 18 U.S.C.

§ 3583(e). The district court imposed the sentence consecutively with Castenada-

Palaez’s 24-month sentence from the Middle District of North Carolina, which he

received for unlawful reentry of a deported alien, 8 U.S.C. § 1326(a) and (b), one

of the substantive crimes that triggered revocation. On appeal, he argues that his

sentence upon revocation of supervised release, and its consecutive imposition, are

substantively unreasonable in light of the applicable 18 U.S.C. § 3553(a) factors.

      We review the sentence imposed upon revocation of supervised release for

reasonableness, United States v. Velasquez Velasquez, 

, 1252 (11th

Cir. 2008), which “merely asks whether the trial court abused its discretion,”

United States v. Pugh, 

, 1189 (11th Cir. 2008) (quotation omitted).

In reviewing the reasonableness of a sentence, we must ensure that the district

court committed no significant procedural error. Gall v. United States, 

, 51, 

, 597, 

(2007). After we determine whether a

sentence is procedurally reasonable, we examine the substantive reasonableness

based on the totality of the circumstances. 

challenging the sentence

bears the burden of establishing that the sentence is unreasonable in light of the

record and the § 3553(a) factors. United States v. Turner, 

, 573 (11th

Cir. 2010).


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      The district court is required to consider certain factors set forth in 18 U.S.C.

§ 3553(a) when it determines a defendant’s sentence upon revocation of supervised

release. 18 U.S.C. § 3583(e) intro., (e)(3). Those factors include the need to deter

criminal conduct, protect the public from the defendant’s future criminal acts, and

provide the defendant with effective correctional treatment. 

(D), 3583(e) intro. The district court must also consider the nature and

circumstances of the offense, the defendant’s history and characteristics, 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. 

(4)-(7), 3583(e) intro., (e)(3).

      For revocation of supervised release, the Guidelines’ pertinent policy

statement provides that the sentence shall be ordered consecutive to any sentence

of imprisonment the defendant is already serving, “whether or not the sentence of

imprisonment being served resulted from the conduct that is the basis of the

revocation.” U.S.S.G. § 7B1.3(f) (policy statement). Although the Guidelines and

their policy statements are advisory, judges are still required to consider them.

United States v. Booker, 

, 245-46, 

, 756-57, 

(2005). Federal statute provides that, generally, when a term of imprisonment

is imposed on a defendant who is already subject to an undischarged term of

imprisonment, the terms may run concurrently or consecutively. 18 U.S.C.


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§ 3584(a). In determining whether the terms should run concurrently or

consecutively, the court must again consider the § 3553(a) factors. 

      While we do not presume that a sentence within the guideline range is

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

Hunt, 

, 746 (11th Cir. 2008). Furthermore, the weight given to any

specific § 3553(a) factor is committed to the sound discretion of the district court.

United States v. Clay, 

, 743 (11th Cir. 2007). However, a court can

abuse its discretion when it (1) fails to consider all factors that were due significant

weight, (2) gives an improper or irrelevant factor significant weight, or (3)

commits a clear error of judgment by balancing the proper factors unreasonably.

United States v. Irey, 

, 1189 (11th Cir. 2010) (en banc). Unjustified

reliance upon any one of the § 3553(a) factors may also indicate an unreasonable

sentence. United States v. Crisp, 

, 1292 (11th Cir. 2006).

      In light of the record and the § 3553(a) factors, Castenada-Palaez fails to

prove that his 24-month sentence is substantively unreasonable. See 

, 128 S.Ct. at 597; 

. The court’s sentence of 24

months is within the guideline range, and we would ordinarily expect such a

sentence to be reasonable. 

.

      The sentence, and its consecutive imposition, also meet the goals

encompassed within § 3553(a)(2). The court expressed concern over Castenada-


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Palaez’s lengthy and violent criminal history, which included three deportations,

and convictions for battering his wife’s face with a bedframe, beating three people

with a baseball bat, annoying or molesting a child (for which he failed to appear

for sentencing), assault, illegal reentry, and driving under the influence. In light of

his disregard for the law and propensity for recidivism, the additional two-year

custodial sentence was needed to deter him from further criminal activity and

protect the public. 18 U.S.C. § 3553(a)(2)(B)-(D).

      Furthermore, while the court may have emphasized Castenada-Palaez’s

wrongdoings, it did not do so “single-mindedly” to the detriment of mitigating

§ 3553(a)(1) factors. See 

. The court explicitly stated that

it (1) considered Castenada-Palaez’s reasons for returning to the United States,

which included escaping from threats in Mexico and providing for his family,

(2) recognized that his family would face financial hardship while he is serving his

sentence, and (3) “heard” his remaining arguments. Moreover, even if the court

did not weigh Castenada-Palaez’s history and characteristics, or the circumstances

of the offense, as heavily as his criminal history, the weight to be given to a

particular factor is within the court’s discretion. 

. As noted

above, the sentence was supported by the § 3553(a) factors and the record.

Therefore, the court did not abuse its discretion by giving an improper factor




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significant weight or by committing a clear error in judgment in balancing the

proper factors. 

.

      Finally, the above considerations, in addition to § 3553(a)(5), support the

court’s decision to impose Castenada-Palaez’s sentence upon revocation of

supervised release consecutively to his sentence from the Middle District of North

Carolina. While the Guidelines are not mandatory, § 3553(a)(5) still instructs

courts to consider the pertinent policy statements of the Sentencing Commission.

18 U.S.C. § 3553(a)(5); 

, 125 S.Ct. at 756-57. In this

case, the Chapter 7 policy statement at issue stated that Castenada-Palaez’s

sentence for revocation of supervised release must be imposed consecutively to his

existing sentence. U.S.S.G. § 7B1.3(f) (policy statement). Certainly then, the

district court did not abuse its discretion by considering a consecutive sentence,

which § 3584(a) authorized it to impose; and, because the court properly weighed

the other § 3553(a) factors, as noted above, its ultimate conclusion to follow the

policy statement and impose the sentence consecutively was reasonable. 18 U.S.C.

§§ 3584(a)-(b); 

.

      The § 3553(a) factors and the totality of the circumstances support both the

sentence upon revocation of supervised release and the court’s decision to impose

that sentence consecutively to the Middle District of North Carolina’s sentence.




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; see 18 U.S.C. § 3584(b). Accordingly, we affirm

Castenada-Palaez’s 24-month sentence as substantively reasonable.

      AFFIRMED.




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