Case: 19-14560   Date Filed: 03/18/2020   Page: 1 of 5



                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-14560
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:19-cr-00246-KOB-SGC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                versus

RIGOBERTO GONZALEZ-MARCIAL,
a.k.a. Berto Gonzalez-Marcial,

                                                        Defendant-Appellant.

                      ________________________

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

                            (March 18, 2020)

Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.

PER CURIAM:
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       Rigoberto Gonzalez-Marcial appeals his within-guideline 14-month sentence

for illegal reentry after removal, in violation of 8 U.S.C. § 1326(a). On appeal, he

argues that the District Court’s sentence is substantively unreasonable in light of

his significant cultural assimilation in the United States. We disagree and affirm.

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

standard. 1 Gall v. United States, 

, 41, 

, 591 (2007). The

party who challenges the sentence bears the burden to show that the sentence is

unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United

States v. Tome, 

, 1378 (11th Cir. 2010).

       The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in § 3553(a)(2), including 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. See 18 U.S.C. § 3553(a)(2). The court must

also consider the nature and circumstances of the offense and the history and

characteristics of the defendant. 

As pertinent, the court must also




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          The Government contends we should review this substantive-reasonableness claim for
plain error because, although Gonzalez-Marcial argued for a lower sentence before the District
Court, he did not object to the reasonableness of the sentence after it was imposed. We do not
need to decide if plain-error review applies here because we conclude that there was no error,
plain or otherwise. See United States v. Victor, 

, 1291 n.3 (11th Cir. 2013).
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consider any policy statement issued by the sentencing commission in effect at the

time of sentencing. 

      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). The district court is permitted to attach great weight to one § 3553(a) factor

over others. United States v. Overstreet, 

, 638 (11th Cir. 2013). A

district court abuses its discretion “when it (1) fails to afford consideration to

relevant factors that were due significant weight, (2) gives significant weight to an

improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” United States v. Irey, 

, 1189 (11th

Cir. 2010) (en banc) (quoting United States v. Campa, 

, 1174 (11th

Cir. 2006) (en banc)). Although we do not presume that a sentence falling within

the guideline range is reasonable, we ordinarily expect such a sentence to be

reasonable. United States v. Hunt, 

, 746 (11th Cir. 2008); but see Rita

v. United States, 

, 347, 

, 2462 (2007) (concluding that

“a court of appeals may apply a presumption of reasonableness to a district court

sentence that reflects a proper application of the Sentencing Guidelines”). A

sentence imposed well below the statutory maximum is another indicator of a

reasonable sentence. See United States v. Gonzalez, 

, 1324 (11th

Cir. 2008).


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      Gonzalez-Marcial argues that the District Court committed a clear error of

judgment in this case by treating his cultural assimilation as an aggravating factor,

contrary to the Guidelines policy statements that treat it as a mitigating factor, and

therefore imposed a substantively unreasonable sentence. A district court must

consider “any pertinent policy statement” when determining the sentence.

18 U.S.C. § 3553(a)(5). The commentary to U.S.S.G. § 2L1.2 provides that

“[t]here may be cases in which a downward departure may be appropriate on the

basis of cultural assimilation.” U.S.S.G. § 2L1.2 cmt. n.8. It is undisputed that

Gonzalez-Marcial has been culturally assimilated in the United States.

      Here, the District Court did not abuse its discretion by imposing a 14-month

sentence, which was within the guideline range. When sentencing

Gonzalez-Marcial, the District Court emphasized his criminal history, his prior

removals from the United States, and the “double-edge sword” of his familial

contacts to the United States, which encouraged him to continually illegally re-

enter the country. The Court did not, as Gonzalez-Marcial contends, treat cultural

assimilation as an aggravating factor. Rather, the District Court opted not to grant

a downward departure based on cultural assimilation. The Court was within its

discretion to give greater weight to Gonzalez-Marcial’s criminal history and his

nine prior removals over his cultural assimilation. 

.

Moreover, the sentence was within the guideline range and below the statutory


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maximum, which are further indicators of reasonableness. See 

; 

. Accordingly, the District Court’s 14-month

sentence is substantively reasonable. We affirm.

      AFFIRMED.




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