United States v. Ever Lopez-Zarate

Opinion

USCA11 Case: 25-10663 Document: 35-1 Date Filed: 05/06/2026 Page: 1 of 5

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-10663 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

EVER LOPEZ-ZARATE, a.k.a. Ever Lopez, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:23-cr-00128-TPB-KCD-1 ____________________

Before LUCK, LAGOA, and DUBINA, Circuit Judges. PER CURIAM: Appellant Ever Lopez-Zarate appeals his 24-month sentence for illegally reentering the United States. Lopez-Zarate argues that USCA11 Case: 25-10663 Document: 35-1 Date Filed: 05/06/2026 Page: 2 of 5

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the district court imposed a substantively unreasonable sentence by failing to consider the guideline range, placing too little weight on his mitigating evidence, and weighing his criminal history too heavily. Lopez-Zarate also argues that the district court did not articulate a sufficient justification for varying from the guideline range. Having reviewed the record and read the parties’ briefs, we affirm Lopez-Zarate’s sentence. I. This court reviews the substantive reasonableness of a sen- tence under the deferential abuse of discretion standard. United States v. Rosales-Bruno, 789 F.3d 1249, 1254-55 (11th Cir. 2015). Un- der the abuse of discretion standard, we will only vacate a sentence if we have a “definite and firm conviction” that the party challeng- ing the sentence has demonstrated that the sentence is unreasona- ble. United States v. Boone, 97 F.4th 1331, 1339 (11th Cir. 2024). II. A sentence is substantively unreasonable when it is greater than necessary to comply with the purposes of sentencing that § 3553(a) lists, including “the need for the sentence imposed to re- flect the seriousness of the offense, to promote respect for the law, [] to provide just punishment for the offense,” to deter criminal conduct, and to protect the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). A district court can also impose a substantively unreasonable sentence by failing to con- USCA11 Case: 25-10663 Document: 35-1 Date Filed: 05/06/2026 Page: 3 of 5

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sider relevant factors due significant weight or by balancing the fac- tors in a clearly unreasonable manner. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). A district court must consider the guideline range as the “in- itial benchmark,” Gall v. United States, 552 U.S. 38, 49, 128 S. Ct. 586, 596 (2007), but it is “only one of a dozen or so factors that the court must take into account.” Rosales-Bruno, 789 F.3d at 1258. A district court must also consider all the relevant § 3553(a) factors, but a district court may give more weight to some § 3553(a) factors than others. United States v. Butler, 39 F.4th 1349, 1355 (11th Cir. 2022). Specifically, a district court may give weight to a defendant’s criminal record because five of the § 3553(a) factors are related to a defendant’s criminal history. Rosales-Bruno, 789 F.3d at 1263. In considering the § 3553(a) factors, a district court must take mitigat- ing evidence into account, but a district court’s acknowledgement that it considered the § 3553(a) factors and the parties’ arguments is sufficient to demonstrate that the district court took mitigating evidence into account. See Butler, 39 F.4th at 1356. A sentence con- taining a variance is substantively reasonable when the district court provides an explanation that justifies the degree of the vari- ance. United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012). III. Lopez-Zarate argues that the district court abused its discre- tion in varying upward in his sentence from a range of 15-21 months to a sentence of 24 months’ imprisonment. He bears the burden of showing that his sentence is “unreasonable in light of the USCA11 Case: 25-10663 Document: 35-1 Date Filed: 05/06/2026 Page: 4 of 5

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entire record, the §3553(a) factors, and the substantial deference af- forded sentencing courts.” Rosales-Bruno, 789 F.3d at 1256. Lopez- Zarate contends that the district court did not adequately consider the guidelines range, that his case was a typical illegal reentry case that did not warrant a different sentence from other similarly situ- ated defendants, that the district court placed too much weight on Lopez-Zarate’s criminal history, and that the district court did not consider Lopez-Zarate’s mitigating circumstances. The record be- lies these arguments. We conclude that Lopez-Zarate has not shown than his 24- month sentence, well below the ten-year statutory maximum, is substantively unreasonable considering the entire record and the section 3553(a) factors. The record shows that Lopez-Zarate ille- gally reentered the United States notwithstanding his felony con- viction for unlawful sexual activity with a minor and his prior de- portation. The record demonstrates that the district court appro- priately considered the guideline range, took Lopez-Zarate’s miti- gating evidence into account, and reasonably exercised its discre- tion to weigh Lopez-Zarate’s criminal history. See Gall, 552 U.S. at 49, 128 S. Ct. at 596; see also Rosales-Bruno, 789 F.3d at 1263; Butler, 39 F.4th at 1356. Additionally, the seriousness of Lopez-Zarate’s prior sex offense justified the district court’s three-month upward variance. See Early, 686 F.3d at 1221. Thus, we conclude that the district court did not abuse its discretion. See Gall, 552 U.S. at 41; see also Boone, 97 F.4th at 1339. USCA11 Case: 25-10663 Document: 35-1 Date Filed: 05/06/2026 Page: 5 of 5

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Accordingly, based on the aforementioned reasons, we af- firm Lopez-Zarate’s sentence. AFFIRMED.