USA v. Estanislao Hernandez-Casarrubias

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 3, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-13003
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-00096-TWT-CCH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESTANISLAO HERNANDEZ-CASARRUBIAS,
a.k.a. Estanislao Hernandez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 3, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:

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Estanislao Hernandez-Casarrubias appeals his 41-month sentence for illegal
reentry, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Hernandez-
Casarrubias argues that his sentence is substantively unreasonable and that the
district court should have granted a downward variance.
We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). “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). “[T]he party who challenges the sentence
bears the burden of establishing that the sentence is unreasonable in the light of
both [the] record and the factors in section 3553(a).” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). “The weight to be accorded any given § 3553(a)
factor is a matter committed to the sound discretion of the district court.” United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotations and alteration
omitted). We vacate a sentence only if “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, 612 F.3d 1160,
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1190 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011) (quotation
omitted). Although we do not automatically presume a sentence within the
guidelines range is reasonable, we ordinarily expect a sentence within the
Guidelines range to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th
Cir. 2008).
When sentencing a defendant, a district court shall consider: (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
offense, to afford adequate deterrence to criminal conduct, to protect the public
from further crimes of the defendant, and to provide the defendant with training,
medical care, or correctional treatment; (3) the kinds of sentences available; (4)
the sentencing guidelines’ range; (5) pertinent Sentencing Commission policy
statements; (6) the need to avoid unwarranted sentencing disparities among
similarly situated defendants with similar records; and (7) the need to provide
restitution to victims. See 18 U.S.C. § 3553(a).
Upon review of the record and consideration of the parties’ briefs, we
affirm.
Hernandez- Casarrubias argues the district court abused its discretion by
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rejecting his request for a variance. Specifically, Hernandez-Casarrubias contends
the district court should have rejected the guideline range due to the Sentencing
Commission’s misguided policy decisions. Although a court may use a policy
disagreement to support a variance, see, e.g., Kimbrough v. United States, 552
U.S. 85, 102 (2007), Hernandez-Casarrubias provides no authority requiring such
a variance. The sentencing court considered Hernandez-Casarrubias’s argument
and chose to reject it, finding instead that the Sentencing Commission’s scheme
was appropriate in this case. The district court proceeded to consider all of the
§ 3553(a) factors, including Hernandez-Casarrubias’s criminal history, and
imposed a guideline-range sentence. The district court sufficiently justified its
chosen sentence. Thus, Hernandez-Casarrubias has failed to demonstrate that his
41-month sentence is unreasonable.
AFFIRMED.
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