Case: 14-12000    Date Filed: 12/11/2014   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12000
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:13-cr-00326-JEC-JSA-1



UNITED STATES OF AMERICA,
                                                              Plaintiff-Appellee,


                                   versus


VICTOR COVERA-PENALOZA,
                                                          Defendant-Appellant.

                      ________________________

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

                            (December 11, 2014)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Victor Covera-Penaloza appeals his 23-month sentence, imposed after he

pled guilty to re-entering the country after deportation, in violation of 8 U.S.C.

§§ 1326(a), (b)(2). On appeal, Covera-Penaloza argues that his sentence was

unreasonable because (1) the guideline range was based primarily on a felony

conviction that occurred almost 20 years ago; (2) he had no other felony

convictions and the remainder of his criminal history, which was mainly for DUI

and simple battery, stemmed from his untreated alcohol dependency; (3) his

reasons for re-entering the country were to be with his family and work; and (4) he

had a history of being a hard worker.

      We review the reasonableness of a sentence under an abuse-of-discretion

standard. Gall v. United States, 

, 46, 

, 594 (2007). We

review the sentence’s substantive reasonableness under the totality of the

circumstances. United States v. Pugh, 

, 1190–91 (11th Cir. 2008).

We are obliged to remand for resentencing if 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. 

A court’s

unjustified reliance on any one § 3553(a) factor may be a “symptom of an

unreasonable sentence,” and a sentence may be substantively unreasonable when

the court fails to consider pertinent § 3553(a) factors. 

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      The party who challenges the sentence bears the burden of showing that the

sentence is unreasonable in light of the record and § 3553(a) factors. United States

v. Tome, 

, 1378 (11th Cir. 2010). “A court of appeals may apply a

presumption of reasonableness to a district court sentence within the Guidelines.”

Rita v. United States, 

, 338, 

, 2457 (2007).

Additionally, a sentence imposed well below the statutory maximum penalty is an

indicator of a reasonable sentence. See United States v. Gonzalez, 

,

1324 (11th Cir. 2008) (per curiam) (holding that defendant’s sentence was

reasonable in part because it was well below the statutory maximum penalty).

      The § 3553(a) factors include the need for the sentence 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. 18 U.S.C. § 3553(a)(2). Other factors include 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). Finally, the statutory maximum term of imprisonment for an

alien whose removal was subsequent to a conviction for the commission of an

aggravated felony is 20 years’ imprisonment. 8 U.S.C. § 1326(b)(2).


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      Upon review of the record and consideration of the parties’ briefs, we

affirm.

      The sentence was substantively reasonable, based on the totality of

circumstances. See 

. In imposing the sentence, the district

court did not unjustifiably rely on Covera-Penaloza’s aggravated felony from 1993.

Rather, the court’s explanation for the sentence made it clear that the sentence

length was due, in large part, to Covera-Penaloza’s continued disrespect for the

law and the danger his criminal conduct posed to the public. See 18 U.S.C.

§ 3553(a)(2). Given (1) Covera-Penaloza’s criminal history, which included

numerous DUI convictions committed after he illegally re-entered the country;

(2) that the sentence was within the applicable guideline range; and (3) that the

sentence was well below the statutory maximum penalty, his 23-month sentence

was substantively reasonable. See 

; 

. Accordingly, we affirm the sentence as reasonable.

      AFFIRMED.




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