USA v. Simon Chavez-Maciel

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 3, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-14629
Non-Argument Calendar
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D. C. Docket No. 09-00139-CR-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIMON CHAVEZ-MACIEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 3, 2010)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

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Defendant-Appellant Simon Chavez-Maciel appeals his 37-month within-
guideline-range sentence imposed after he pleaded guilty to being an alien found in
the United States after previous deportation and removal, in violation of 8 U.S.C. §
1326(a) and (b)(2). No reversible error has been shown; we affirm.
Defendant, a native of Mexico, was deported on 3 June 2000, following a
state conviction for a commercial burglary and multiple driving offenses (including
driving under the influence). He was deported again on 4 August 2004, following
multiple convictions for driving under the influence. On 1 August 2008,
Immigration and Customs Enforcement agents encountered Defendant in the
Gwinnett County Jail where he was being held following a 2007 conviction on a
felony traffic charge. Defendant pleaded guilty to the single illegal re-entry count
without a plea agreement. The district court calculated Defendant’s guideline
range to be 33 to 41 months; a sentence of 37 months was imposed.
Defendant challenges the substantive reasonableness of his sentence.*
According to Defendant, the sentence imposed is substantively unreasonable
because it is too harsh, so excessive that it is not just punishment, fails to reflect
accurately the seriousness of the offense, is not tailored to individual punishment,
serves no deterrent function, and violates the parsimony provision of section 3553.
No procedural-based challenge is advanced; Defendant acknowledged the procedural*
soundness of the sentence at his sentencing hearing.
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We review the reasonableness of a sentence in the light of the factors set out
in 18 U.S.C. § 3553(a). A deferential abuse of discretion standard governs our
review. Gall v. United States, 128 S.Ct. 586, 597 (2007). The party challenging a
sentence in the light of the record and the section 3553(a) factors bears the burden
of establishing that a sentence is unreasonable. United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005). We do not deem a sentence within the advisory
guidelines range per se reasonable, id. at 787; but “ordinarily we would expect a
sentence within the Guidelines range to be reasonable.” Id. at 788. Our
deferential review for substantive reasonableness requires no consideration of each
decision made during sentencing individually, see United States v. Dorman, 488
F.3d 936, 938 (11 Cir. 2007); it requires a review only of the final sentence forth
reasonableness in the light of the section 3553(a) factors. Id.
It is clear from the record that the district court listened to Defendant’s
arguments in support of a below-guidelines-range sentence; it is also clear from the
record that the district court considered the advisory-guideline range and the
section 3553(a) factors to fashion a sentence that was reasonable, individually
tailored to Defendant, and sufficient, but not greater than the district court deemed
necessary, to comply with the statutory purposes of sentencing. Defendant fails to
show that the sentence imposed is substantively unreasonable.
AFFIRMED.
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