USA v. Hector Geovani Xona-Mac

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13854
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR GEOVANI XONA-MAC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80146-AMC-1
____________________
USCA11 Case: 21-13854 Date Filed: 05/19/2022 Page: 1 of 7

-- 1 of 7 --

2 Opinion of the Court 21-13854
Before ROSENBAUM, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
Hector Xona-Mac challenges his 20-month sentence for ille-
gal reentry after deportation, in violation of 8 U.S.C. §§ 1326(a),
(b)(1). He asserts (1) that his sentence is procedurally unreasonable
because the district court failed to adequately explain his sentence
and did not properly consider the § 3553(a) factors, and (2) that his
sentence is substantively unreasonable because the district court
focused solely on deterrence and ignored other relevant sentencing
factors. After careful review, we affirm.
Applying a two-step process, “we review the reasonableness
of a district court’s sentence for abuse of discretion.”
United States
v. Trailer, 827 F.3d 933, 935 (11th Cir. 2016). When reviewing a
sentence’s reasonableness, we first ensure that the sentence is pro-
cedurally reasonable, and then consider whether it is substantively
reasonable.
Id. at 936. The party who challenges the sentence
bears the burden of showing that the sentence is unreasonable.
Id.
A district court’s sentence is procedurally unreasonable if
the district court failed to, among other things, adequately explain
the chosen sentence.
Gall v. United States, 552 U.S. 38, 51 (2007).
Although the district court must consider the 18 U.S.C. § 3553(a)
sentencing factors, it is not required to explicitly discuss or state on
the record that it has considered each of the § 3553(a) factors.
United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009).
USCA11 Case: 21-13854 Date Filed: 05/19/2022 Page: 2 of 7

-- 2 of 7 --

21-13854 Opinion of the Court 3
Instead, an acknowledgment by the district court that it considered
the factors is sufficient.
United States v. Turner, 474 F.3d 1265,
1281 (11th Cir. 2007). A district court is not “required to articulate
[its] findings and reasoning with great detail or in any detail for that
matter.”
United States v. Irey, 612 F.3d 1160, 1195 (11th Cir. 2010)
(
en banc). The Supreme Court has held that the appellate court
must be able to satisfy itself that the district court has considered
the parties’ arguments and has a reasoned basis for exercising its
own legal decision-making authority.
Rita v. United States, 551
U.S. 338, 356 (2007). But it is enough that the context and record
indicate the reasoning behind the district court’s conclusion.
Id. at
359.
If a sentence is procedurally reasonable, we next consider its
substantive reasonableness.
Gall, 552 U.S. at 51. The appellate
court must consider the totality of the circumstances.
Id. The
weight given to each § 3553(a) factor is “committed to the sound
discretion of the district court, and we will not substitute our judg-
ment in weighing the relevant factors.”
United States v. Amedeo,
487 F.3d 823, 832 (11th Cir. 2007) (cleaned up). We will overturn
a sentence as substantively unreasonable only if we are “left with
the definite and firm conviction” that a clear error of judgment was
made by the district court in weighing the § 3553(a) factors and the
resulting sentence is “outside the range of reasonable sentences dic-
tated by the facts of the case.”
Irey, 612 F.3d at 1190. We do not
presume that a sentence outside the guideline range is
USCA11 Case: 21-13854 Date Filed: 05/19/2022 Page: 3 of 7

-- 3 of 7 --

4 Opinion of the Court 21-13854
unreasonable, and we give deference to the district court’s decision
that its sentence is supported by the § 3553(a) factors.
Id. at 1187.
Under § 3553(a), a sentencing court must impose a sentence
that is “sufficient, but not greater than necessary,” “to reflect the
seriousness of the offense,” “to promote respect for the law,” “to
provide just punishment for the offense,” “to afford adequate de-
terrence,” and “to protect the public from further crimes of the de-
fendant.” 18 U.S.C. § 3553(a). In addition, the court must consider
“the nature and circumstances of the offense and the history and
characteristics of the defendant,” “the kinds of sentences available,”
the guideline sentencing range, and “the need to avoid unwar-
ranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.”
Id. § 3553(a)(1),
(3)–(4), (6).
The district court may impose an upward variance based on
the § 3553(a) factors.
See, e.g.,
United States v. Overstreet, 713 F.3d
627, 637-38 (11th Cir. 2013). The district court may also impose an
upward variance if it concludes that the guideline range is insuffi-
cient considering the defendant’s criminal history.
United States v.
Osorio-Moreno, 814 F.3d 1282, 1288 (11th Cir. 2016). We have
held that a district court may consider a defendant’s criminal his-
tory both in calculating the correct guideline range and in applying
an upward variance.
See United States v. Rosales-Bruno, 789 F.3d
1249, 1264 (11th Cir. 2015). We have stated that “[d]istrict courts
have broad leeway in deciding how much weight to give to prior
crimes the defendant has committed.”
Id. at 1261. A district court’s
USCA11 Case: 21-13854 Date Filed: 05/19/2022 Page: 4 of 7

-- 4 of 7 --

21-13854 Opinion of the Court 5
sentence does not become unreasonable merely because the court
did not accept the prosecutor’s or defense counsel’s recommenda-
tion.
See United States v. Valnor, 451 F.3d 744, 745-46, 752 (11th
Cir. 2006) (affirming upward variance despite government and de-
fendant jointly recommending sentence at low end of guideline
range).
Here, Xona-Mac’s 20-month sentence is both procedurally
and substantively reasonable. Contrary to Xona-Mac’s assertions
as to procedural reasonableness, the district court adequately ex-
plained its sentence, stating that it considered the § 3553(a) factors,
and it heard the parties’ arguments as to the § 3553(a) factors and
provided a reasoned basis for the sentence.
Turner, 474 F.3d at
1281;
Rita, 551 U.S. at 356. Specifically, the district court heard the
government’s explanation that it was recommending a sentence on
the low end of Xona-Mac’s guideline range and Xona-Mac’s argu-
ments that the guidelines already accounted for his prior immigra-
tion convictions, that he returned to the United States to support
his family, that he acknowledged that he was wrong to reenter the
United States illegally, that he did not intend to do it again in the
future, and that his criminal history did not involve any violence,
guns, or drugs. Acknowledging these arguments, the district court
nonetheless, in an exercise of its broad sentencing discretion, as-
signed greater weight to Xona-Mac’s criminal history and the need
to promote respect for the law and to afford adequate deterrence
to criminal conduct. The district court therefore provided a
USCA11 Case: 21-13854 Date Filed: 05/19/2022 Page: 5 of 7

-- 5 of 7 --

6 Opinion of the Court 21-13854
reasoned basis for exercising its legal decision-making authority.
Rita, 551 U.S. at 356.
Xona-Mac’s 20-month sentence is also substantively reason-
able. First, and most importantly, the district court had “broad lee-
way” to allot significant weight to Xona-Mac’s criminal history and
to vary upward based on such history in order to promote respect
for the law and to afford adequate deterrence to criminal conduct,
even if his guideline range had fully accounted for his criminal his-
tory.
Amedeo, 487 F.3d at 832;
Osorio-Moreno, 814 F.3d at 1288;
Rosales-Bruno, 789 F.3d at 1261, 1264. Moreover, although Xona-
Mac’s criminal history category captured both of his prior illegal
reentry convictions and one of the other instances in which he un-
lawfully entered the United States and was deported, it did not ac-
count for the other instance in which he was deported and could
have been charged with and convicted of illegal reentry a third
time, and his offense level only captured one of his illegal reentry
convictions. U.S.S.G. § 2L1.2(b)(1)(A) (emphasis added) (increas-
ing an offense level by four if the defendant has sustained “
a con-
viction” for an illegal reentry offense). And to be clear, the parties’
joint recommendation of a sentence on the low-end of Xona-Mac’s
guideline range did not render the district court’s variance up to 20
months unreasonable.
Valnor, 451 F.3d at 745-46, 752. Further-
more, Xona-Mac’s 20-month sentence was well below the statu-
tory maximum of 10 years. 8 U.S.C. § 1326(b)(1);
Gonzalez, 550
F.3d at 1324. Finally, Xona-Mac has not shown an unwarranted
disparity between his sentence and those sentenced under the same
USCA11 Case: 21-13854 Date Filed: 05/19/2022 Page: 6 of 7

-- 6 of 7 --

21-13854 Opinion of the Court 7
guideline. 18 U.S.C. § 3553(a)(6). Accordingly, Xona-Mac’s sen-
tence was also substantively reasonable.
AFFIRMED.
USCA11 Case: 21-13854 Date Filed: 05/19/2022 Page: 7 of 7

-- 7 of 7 --