USA v. Humberto Zavala Nunez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 16, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-14507
Non-Argument Calendar
________________________
D. C. Docket No. 09-00173-CR-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO ZAVALA NUNEZ,
a.k.a. Umberto Zavala-Nunez,
a.k.a. Rogelio Hernandez-Camacho,
a.k.a. Rogelio Camacho-Hernandez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 16, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:

-- 1 of 4 --

Humberto Zavala Nunez appeals his 41-month sentence on the ground that it
is substantively unreasonable. We disagree and affirm.
Zavala Nunez pleaded guilty to illegal re-entry after deportation, in violation
of 8 U.S.C. § 1326(a). In calculating the guideline range, the probation officer
assigned a base offense level of 8 under U.S.S.G. § 2L1.2(a), with a 16-level
increase under § 2L1.2(b)(1)(a)(i), and a 3-level reduction for acceptance of
responsibility, resulting in a total adjusted offense level of 21. The probation1
officer determined Zavala Nunez’s criminal history to be a category II based on a
1994 conviction for possession of heroin for sale. This yielded a guideline range
of 41 to 51 months’ imprisonment. The statutory maximum term was 20 years.
See 8 U.S.C. § 1326(b)(2).
Zavala Nunez requested a sentence below the guideline range because his
prior conviction occurred fifteen years earlier, he had no other convictions since
then, he had a wife and children, he was employed and paid taxes, and he had
cooperated with federal agents. The district court considered that Zavala Nunez
had committed a drug crime involving a “very serious narcotic,” was arrested, gave
a false name, was convicted under that false name and ultimately deported, and that
The probation officer listed a 2-level reduction under § 3E1.1(a). Upon a motion by1
the government, the court at sentencing applied a 3-level reduction under § 3E1.1(a) and (b),
which resulted in a total adjusted offense level of 21.
2

-- 2 of 4 --

he re-entered the United States using a green card he was no longer entitled to
have. The court thus determined that a sentence below the guideline range was not
warranted and imposed a sentence at the bottom of the guideline range. In doing
so, the court cited the sentencing factors in 18 U.S.C. § 3553(a). This appeal2
followed.
We review the reasonableness of a sentence under a “deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In
reviewing sentences for reasonableness, we perform two steps. United States v.
Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we must “‘ensure that the
district court committed no significant procedural error.” Id. If we conclude that
the district court did not procedurally err, we then must consider the “‘substantive
reasonableness of the sentence imposed’” based on the “‘totality of the
circumstances.’” Id. (quoting Gall, 552 U.S. at 51). Our review is “deferential,”
requiring us to determine “whether the sentence imposed by the district court fails
to achieve the purposes of sentencing as stated in section 3553(a).” United States
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the2
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; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
3

-- 3 of 4 --

v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). There is a “range of reasonable
sentences from which the district court may choose,” and the burden is on the
defendant to show that the sentence was unreasonable in light of the record and the
§ 3553(a) factors. Id. “The weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court, and we will not
substitute our judgment in weighing the relevant factors.” United States v.
Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (internal quotation and brackets
omitted).
Here, Zavala Nunez challenges only the substantive reasonableness of his
sentence. Upon review, we conclude that Zavala Nunez’s 41-month sentence is
reasonable. The district court listened to the parties’ arguments and gave
consideration to the § 3553(a) factors. The court expressed concern over Zavala
Nunez’s criminal record and determined that a sentence below the guideline range
would not serve the purposes of § 3553(a). The court did, however, sentence
Zavala Nunez to the low end of the guideline range, which was well below the
statutory maximum term of imprisonment. Zavala Nunez has not shown that this
sentence is unreasonable. Accordingly, Zavala Nunez’s sentence is
AFFIRMED.
4

-- 4 of 4 --