United States v. Stephen Barrymore Gore , 403 F. App'x 429 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 19, 2010
No. 10-12112
JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 1:10-cr-20025-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN BARRYMORE GORE,
a.k.a. Mikki Gore,
Defendant-Appellant,
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 19, 2010)
Before BLACK, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Stephen Barrymore Gore appeals his 57-month sentence imposed after
pleading guilty to illegal re-entry after deportation in violation of 8 U.S.C.
§ 1326(a). Pursuant to the sentencing guidelines, Gore’s offense level was 24 and
criminal history category was III, resulting in a guideline range of 63 to 78
months. See §§ 2L1.2 & 4A1.1 (2009). Upon Gore’s request, the district court
decreased his offense level by three points, based on his acceptance of
responsibility. This reduced his guideline range to between 46 and 57 months.
On appeal, Gore argues this his within-guideline sentence is substantively
unreasonable. After thorough review, we affirm.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). We must first “ensure that the district court committed no significant
procedural error . . . [and] then consider the substantive reasonableness of the
sentence imposed.” United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
Gore does not argue that the district court committed procedural error. Rather, he
argues that the court erred in sentencing him at the high end of the guideline range
because his most recent conviction occurred twenty years ago.
When reviewing a sentence for substantive reasonableness, we examine the
totality of the circumstances and determine whether the sentence achieves the
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sentencing goals stated in 18 U.S.C. § 3553(a). United States v. Culver, 598 F.3d
740, 753 (11th Cir. 2010); Pugh, 515 F.3d at 1191. “[T]he party who challenges
the sentence bears the burden of establishing that the sentence is unreasonable in
the light of both th[e] record and the factors in section 3553(a).” United States v.
Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007) (quoting United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005)). We ordinarily expect a sentence within the
guideline range to be reasonable. Talley, 431 F.3d at 788. Further, it is within the
district court’s discretion to weigh the § 3553(a) factors, and “[w]e will not
substitute our judgment in weighing the relevant factors.” United States v.
Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quoting United States v. Williams,
456 F.3d 1353, 1363 (11th Cir. 2006)).
Gore has not established that his sentence is substantively unreasonable.
The district court sentenced Gore within the guideline range that Gore conceded
was correct at his sentencing hearing. Gore’s sentence is well below the statutory
maximum sentence, twenty years, for illegal re-entry. See 8 U.S.C. § 1326(b)(2).
It was within the district court’s discretion to weigh the § 3553(a) factors, in light
of Gore’s criminal history, and select a sentence at the high end of the guideline
range.
For these reasons, we AFFIRM.
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