United States v. Jose Angel Moya-Garcia , 452 F. App'x 931 ( 2012 )


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  •                                                              [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    _________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    JAN 24, 2012
    No. 10-14202
    JOHN LEY
    _________________________
    CLERK
    D. C. Docket No. 8:10-cr-00123-SDM-MAP-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JOSE ANGEL MOYA-GARCIA,
    Defendant-Appellant.
    ___________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ___________________________
    (January 24, 2012)
    Before EDMONDSON, BARKETT and MARCUS, Circuit Judges.
    PER CURIAM:
    Jose Angel Moya-Garcia appeals his 57-month sentence imposed for
    illegally re-entering the United States after having been deported as an aggravated
    felon, 8 U.S.C. § 1326(a) and (b)(2). No reversible error has been shown; we
    affirm.
    On appeal, Moya-Garcia argues that his sentence substantively is
    unreasonable because the court failed to give proper weight to his cultural
    assimilation argument1 and focused unjustifiably on the need to afford adequate
    deterrence. We evaluate the substantive reasonableness of a sentence under a
    deferential abuse-of-discretion standard. Gall v. United States, 
    128 S. Ct. 586
    , 597
    (2007). The party challenging the sentence bears the burden of establishing that
    the sentence is unreasonable in the light of both the record and the section 3553(a)
    factors. United States v. Talley, 
    431 F.3d 784
    , 788 (11th Cir. 2005).
    Moya-Garcia failed to satisfy his burden of proof. First, his 57-month
    sentence is at the low end of the 57 to 71-month advisory guideline sentence
    range, and we ordinarily expect a guideline sentence to be reasonable. See 
    id. at 787-88
    (concluding that, although not per se reasonable, “ordinarily we would
    expect a sentence within the Guidelines range to be reasonable”). His sentence is
    also well below the 20-year statutory maximum sentence for his offense. See 8
    U.S.C. § 1326(b)(2); United States v. Gonzalez, 
    550 F.3d 1319
    , 1324 (11th Cir.
    1
    Although the cultural assimilation guideline -- now set forth in U.S.S.G. § 2L1.2, cmt. (n.8) --
    was not in effect during Moya-Garcia’s sentencing hearing, he argued for a downward variance,
    pursuant to 18 U.S.C. § 3553(a), based on his cultural ties to the United States.
    2
    2008) (concluding that the reasonableness of a sentence may also be indicated
    when the sentence imposed was well below the statutory maximum sentence).
    Contrary to Moya-Garcia’s assertion, the court spent considerable time
    discussing his cultural assimilation argument. It acknowledged that it had the
    discretion to vary from the guideline range based on Moya-Garcia’s cultural
    assimilation and discussed each of the factors set forth in the proposed guideline.2
    See U.S.S.G. § 2L1.2, cmt. (n.8). The court acknowledged that Moya-Garcia had
    cultural ties with the United States but concluded that he also had cultural ties with
    Mexico. The district court was also unconvinced that Moya-Garcia’s cultural ties
    were the “primary motivation” for his re-entry, noting that his criminal history
    indicated that he was also motivated by economic reasons. In the light of
    Moya-Garcia’s willingness to re-enter the country illegally, the court also
    determined that a lower sentence would increase the risk of him doing so again.
    Although Moya-Garcia argues that the district court relied too heavily on
    the need for deterrence, the court’s discussion of the United States’ immigration
    2
    U.S.S.G. § 2L1.2, cmt. (n.8) provides that, in determining whether a downward departure based
    on cultural assimilation is appropriate, courts should consider whether:
    (A) the defendant formed cultural ties primarily with the United States from having
    resided continuously in the United States from childhood, (B) those cultural ties
    provided the primary motivation for the defendant’s illegal reentry or continued
    presence in the United States, and (C) such a departure is not likely to increase the
    risk to the public from further crimes of the defendant.
    3
    laws was also relevant to other section 3553(a) factors, including the need for a
    sentence to reflect the seriousness of an offense and to promote respect for the
    law. See 18 U.S.C. § 3553(a)(2)(A), (B). Moreover, the weight to be given a
    particular section 3553(a) factor is left to the sound discretion of the district court
    absent a clear error of judgment. See United States v. Pugh, 
    515 F.3d 1179
    , 1191
    (11th Cir. 2008). Because the court did not “focus single-mindedly” on the need
    for deterrence to the detriment of the other section 3553(a) factors, we see no such
    error. See United States v. Crisp, 
    454 F.3d 1285
    , 1292 (11th Cir. 2006)
    (concluding a sentence was unreasonable when the district court “focused
    single-mindedly on the goal of restitution to the detriment of all of the other
    sentencing factors”).
    Although he concedes that his guideline range was calculated correctly,
    Moya-Garcia also argues that the application of U.S.S.G. § 2L1.2(b)(1)(A)(vii)’s
    16-level enhancement for his prior conviction for transporting illegal aliens
    resulted in an unreasonable sentence. Because he failed to demonstrate that his
    final sentence is substantively unreasonable, we reject this argument. See United
    States v. Martinez, 
    434 F.3d 1318
    , 1322 (11th Cir. 2006) (stating that we review
    the final sentence for reasonableness, not “each individual decision made during
    the sentencing process”).
    AFFIRMED.
    4
    

Document Info

Docket Number: 10-14202

Citation Numbers: 452 F. App'x 931

Judges: Barkett, Edmondson, Marcus, Per Curiam

Filed Date: 1/24/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023