Case: 15-10034     Date Filed: 07/31/2015   Page: 1 of 5


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-10034
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 1:14-cr-00289-TWT-JFK-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

GUSTAVO LEON-RAMOS,
a.k.a. Juan Carlos Serna-Ruiz,
a.k.a. Juan Cruz Serna,
a.k.a. Martin Tapiafranco,

                                                              Defendant-Appellant.

                          ________________________

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

                                  (July 31, 2015)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Gustavo Leon-Ramos appeals his 37-month sentence, imposed after

pleading guilty to one count of reentry of a deported alien, in violation of 8 U.S.C.

§ 1326(a), (b)(2). In imposing this sentence, the district court granted Leon-

Ramos’s motion for a downward departure based on the time he had already spent

in state custody, pursuant to U.S.S.G. § 2L1.2, application note 8, departing from

the guideline range of 70 to 87 months. On appeal, Leon-Ramos argues that the

sentence is unreasonable because the district court misapplied the Guidelines when

it: (1) imposed a 16-level enhancement, under U.S.S.G. § 2L1.2(b)(1)(A)(i), for

being previously deported following a conviction for a drug offense for which the

sentence imposed exceeded 13 months; and (2) assessed 2 additional criminal

history points, under U.S.S.G. § 4A1.1(d), for having committed the instant

offense while under a criminal sentence. After thorough review, we affirm.

      We review the interpretation and application of the Guidelines de novo, and

the underlying factual findings for clear error. United States v. Rodriguez, 

, 1305 (11th Cir. 2013).       However, “it is not necessary to decide

guidelines issues or remand cases for new sentence proceedings where the

guidelines error, if any, did not affect the sentence.” United States v. Keene, 

, 1349 (11th Cir. 2006) (quotations omitted). To determine whether an

alleged error was harmless, we must consider: (1) whether the district court would

have reached the same result if it had decided the guidelines issue in the


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defendant’s favor; and (2) assuming the guidelines issue had been decided in the

defendant’s favor, whether the sentence imposed was reasonable in light of the §

3553(a) factors. 

the sentence a district court imposes for

“reasonableness,” we “merely ask[] whether the trial court abused its discretion.”

United States v. Pugh, 

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

United States, 

, 351 (2007)).

       In this case, we need not reach the question of whether the Guidelines were

properly applied because any error in the application of the Guidelines was

harmless. As the record shows, the district court expressly said that it would have

imposed the same sentence absent the enhancements. Thus, the first-prong of the

harmless error inquiry set forth in Keene is satisfied.

       In addition, because Leon-Ramos’s sentence was reasonable, the second part

of the test is also satisfied. In reviewing the “‘substantive reasonableness of [a]

sentence imposed under an abuse-of-discretion standard,’” we consider the

“‘totality of the circumstances.’” 

(quoting Gall v. United

States, 

, 51 (2007)).            The district court must impose a sentence

“sufficient, but not greater than necessary to comply with the purposes” listed in 18

U.S.C. § 3553(a).1 “[W]e will not second guess the weight (or lack thereof) that


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        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
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the [court] accorded to a given [§ 3553(a)] 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, alteration

and emphasis omitted). We will vacate a sentence only 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. Irey, 

, 1190 (11th Cir. 2010) (en banc) (quotations omitted).

       While we do not automatically presume that a sentence falling within the

guideline range is reasonable, we ordinarily expect that sentence to be reasonable.

United States v. Talley, 

, 788 (11th Cir. 2005). The reasonableness of

a sentence may also be indicated when the sentence imposed is well below the

statutory maximum. United States v. Gonzalez, 

, 1324 (11th Cir.

2008).     The party challenging the sentence bears the burden to show it is

unreasonable. United States v. Tome, 

, 1378 (11th Cir. 2010).

       Here, even if the guideline issues had been resolved in his favor, Leon-

Ramos’s 37-month sentence is substantively reasonable. The record reveals that



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).
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without the errors he alleges, he would have had a criminal history category of IV

and a total of 17 offense points, resulting in a guideline range of 37 to 46 months.

See U.S.S.G. Sentencing Table, Ch.5, Pt. A. Thus, his 37-month sentence would

have been at the very bottom of the guideline range -- a sentence we ordinarily

would expect to be reasonable. Moreover, his 37-month sentence is well below the

20-year statutory maximum penalty.       Indeed, it is the very sentence that he

requested.

      The record also indicates that the district court considered all of the §

3553(a) factors in imposing the sentence and concluded that the 37-month sentence

was “fair and reasonable” in light of these factors. Under the circumstances,

particularly given the fact that he had previously been deported nine times, but

continued to reenter the country, the record supports the conclusion that the 37-

month sentence was sufficient, but not greater than necessary to accomplish the

sentencing goals set forth in § 3553(a) -- principally, the need to reflect the

seriousness of the offense, the need to deter him from reentering the country for an

eleventh time, and the need to promote respect for the law. In short, because his

37-month sentence would have been reasonable even without the errors he alleges,

any error the district court may have committed in applying the Guidelines was

harmless, and we affirm.

      AFFIRMED.


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