USA v. Terrazas-Hernandez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DEC 02, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-11549
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-00469-TWT-ECS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE TERRAZAS-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(December 2, 2010)
Before TJOFLAT, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Jose Terrazas-Hernandez appeals his 46-month prison sentence, imposed at

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the low end of the applicable Guideline sentencing range, after pleading guilty to
illegally re-entering the United States subsequent to having been deported
following a conviction of an aggravated felony in violation of 8 U.S.C. § 1326(a)
and (b)(2). On appeal, he argues that his sentence was substantively unreasonable
because the district court over-emphasized the applicable sentencing range, which,
he maintains, was based almost entirely on a 12-year-old sexual assault
conviction.
We review “all sentences—whether inside, just outside, or significantly
outside the Guidelines range—under a deferential abuse-of-discretion standard.”
United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotation
omitted). “The review for substantive unreasonableness involves examining the
totality of the circumstances, including an inquiry into whether the statutory
factors in [18 U.S.C.] § 3553(a) support the sentence in question.” United States
v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008), cert. denied, 129 S.Ct. 2848
(2009). The party challenging the sentence has the burden of establishing
unreasonableness in light of the record and the § 3553(a) factors. United States v.
Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).
The Guidelines provide for a 16-level enhancement of a defendant’s base
offense level if the defendant previously was deported after a conviction for a
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crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The enhancement applies
regardless of the age of the conviction. United States v. Camacho-Ibarquen, 410
F.3d 1307, 1315 (11th Cir. 2005). The purpose of the enhancement is to deter
aliens from reentering the United States. United States v. Adeleke, 968 F.2d 1159,
1160 (11th Cir. 1992). The statute specifically provides for a greater maximum
sentence for the illegal reentry of violent felons than illegal reentry of just any
removed alien because Congress recognized the need to provide for a greater
deterrence to illegal entry in such cases. United States v. Zelaya, 293 F.3d 1294,
1298 (11th Cir. 2002).
A sentence is substantively unreasonable “if it does not achieve the
purposes of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d
1179, 1191 (11th Cir. 2008) (quotation omitted). The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need to reflect the seriousness of the offense, to afford
adequate deterrence, to promote respect for the law, to provide just punishment for
the offense, to protect the public, and to provide the defendant with needed
educational or vocational training or medical care; (3) the kinds of sentences
available; (4) the Sentencing Guidelines’ range; (5) pertinent Sentencing
Commission policy statements; (6) the need to avoid unwarranted sentencing
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disparities among similarly situated defendants with similar records; and (7) the
need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).
In its consideration of the § 3553(a) factors, the district court does not need
to discuss each factor explicitly. United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005). “[A]n acknowledgment by the district court that it has considered the
defendant’s arguments and the factors in section 3553(a) is sufficient under
[United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)].”
Id. “We will defer to the district court’s judgment regarding the weight given to
the § 3553(a) factors unless the district court has made a clear error of judgment
and has imposed a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” Gonzalez, 550 F.3d at 1324 (quotations
omitted). “[O]rdinarily we would expect a sentence within the Guidelines range to
be reasonable.” Talley, 431 F.3d at 788.
In this case, the district court did not abuse its discretion by declining
Terrazas-Hernandez’s request for a downward variance because his U.S.S.G.
§ 2L1.2(b) enhancement was based on an old conviction. As noted above, the age
of the prior conviction is irrelevant to the application of the enhancement.
Accordingly, the district court did not err by applying the enhancement or by
refusing to grant a downward variance to minimize or eliminate the enhancement’s
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adverse impact on his guideline range.
Moreover, Terrazas-Hernandez’s custodial sentence of 46 months was
reasonable. The record does not support his contention that the district court
placed too much weight on the applicable guideline range. Instead, the district
court considered all of the § 3553(a) factors and the arguments of the parties in
imposing an individualized sentence at the low end of the custodial range. A term
of imprisonment of several years arguably will deter Terrazas-
-Hernandez, and others similarly situated, from illegally re-entering the United
States once again. Furthermore, his sentence was well below the maximum
20-year sentence available under 8 U.S.C. § 1326(b)(2).
Under the totality of the circumstances, it cannot be said that
Terrazas-Hernandez’s 46-month’s sentence was greater than necessary to
accomplish the purposes of sentencing. Accordingly, Terrazas-Hernandez has not
satisfied his burden of establishing substantive unreasonableness in light of the
record and the § 3553(a) factors.
AFFIRMED.
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