United States v. Juan Jose Mercado Lopez , 481 F. App'x 609 ( 2012 )

Case: 11-15373 Date Filed: 07/24/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15373
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00204-JOF-ECS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE MERCADO LOPEZ,
a.k.a. Antonio Miranda Ramirez,
a.k.a. Arturo Ramirez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(July 24, 2012)
Before HULL, FAY and EDMONDSON, Circuit Judges.
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PER CURIAM:
After pleading guilty, Juan Jose Mercado Lopez appeals his 24-month
sentence for illegal reentry of a deported alien following an aggravated felony
conviction, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Lopez argues
that his 24-month sentence, at the low end of his advisory guidelines range of 24
to 30 months imprisonment, is substantively unreasonable. After 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 look first at whether the district court committed any significant
procedural error and then at whether the sentence is substantively unreasonable
under the totality of the circumstances. United States v. Pugh, 515 F.3d 1179,
1190 (11th Cir. 2008). The abuse of discretion standard “allows a range of choice
for the district court, so long as that choice does not constitute a clear error of
judgment.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc),
cert. denied, ___ U.S. ___, 131 S. Ct. 1813 (2011) (internal quotation marks
omitted). We ordinarily expect a sentence within the guidelines range to be
reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The
party challenging the sentence bears the burden of proving the sentence is
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unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. Id.1
Lopez does not argue procedural error at his sentencing.2 Instead, Lopez
contends the district court should have varied downward from the advisory
guidelines range because his criminal history category IV under the guidelines
over-represented his criminal history, and because he came to the United States
only to support his family and vowed never to return again.
Lopez has not shown that the district court’s refusal to vary downward was
an abuse of discretion. Lopez, a citizen of Mexico, was previously deported from
the United States three times, in June 2003, August 2003 and June 2005. After
Lopez’s June 2003 deportation, he illegally reentered the country eight days later,
where he was apprehended by U.S. border patrol agents. After his August 2003
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need 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
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
2
At sentencing, Lopez raised several objections to the PSI’s guidelines calculations and
sought a downward departure under U.S.S.G. § 4A1.3(b) based on an over-represented criminal
history. On appeal, however, Lopez does not argue that the district court erred in calculating his
advisory guidelines range. To the extent Lopez challenges the denial of his downward departure
request, Lopez does not contend that the district court mistakenly believed he lacked authority to
depart, and we lack jurisdiction to review the discretionary denial of a downward departure. See
United States v. Norris, 452 F.3d 1275, 1282 (11th Cir. 2006).
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deportation, Lopez illegally reentered six-months later, in February 2004. The
district court stated that the speed with which Lopez illegally reentered indicated
that Lopez thought “it is all a game” and what he was doing was not “anything
serious.” Notably, Lopez’s most recent deportation in June 2005 occurred after he
was convicted of illegal reentry in the Southern District of Illinois and served a
thirteen-month sentence. This thirteen-month sentence clearly did not deter Lopez
given that, by his own admission, he was back in the United States by 2009.
Moreover, while in this country, Lopez committed several crimes apart from
his felony immigration offense, including battery, felony theft by shoplifting and
two separate convictions for driving under the influence. The district court
rejected Lopez’s argument that his crimes were not as serious as his criminal
history category IV suggested. The district court stated that although Lopez’s
crimes were ones that “we tend to not think seriously about,” they nonetheless
were serious crimes, and “the pattern of [Lopez’s] behavior is such that [the court]
can’t see a case for leniency in [Lopez’s] situation.” Under the totality of the
circumstances, we cannot say the district court’s 24-month sentence, at the low
end of the advisory guidelines range, was an abuse of discretion.
AFFIRMED.
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