Case: 17-15305 Date Filed: 08/03/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15305 Non-Argument Calendar ________________________
D.C. Docket No. 5:17-cr-00123-LSC-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL GONZALEZ-FLORES, a.k.a. Carlos Manuel Gonzalez, a.k.a. Carlos Gonzalez, a.k.a. Manuel C. Gonzalez, a.k.a. Miguel Gonzalez,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(August 3, 2018) Case: 17-15305 Date Filed: 08/03/2018 Page: 2 of 6
Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
Miguel Gonzalez-Flores appeals his 36-month sentence for unlawful reentry
after deportation or removal subsequent to a felony conviction. He argues that his
sentence is substantively unreasonable because, he says, the district court placed
significant weight on his criminal history while ignoring his mitigating
characteristics and failed to adequately justify its upward variance. Because we
conclude that Gonzalez-Flores’s sentence is reasonable, we affirm.
I
Gonzalez-Flores pleaded guilty to one count of illegally reentering the
United States after having been previously removed subsequent to a felony
conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). According to the
presentence investigation report, Gonzalez-Flores, a Mexican national, has lived in
the United States since age 11. During that time, he has been convicted of felony
possession of a controlled substance, along with 18 other crimes. Those crimes
include, among other things, resisting a public officer, driving under the influence
(four times), possessing a firearm with the identification altered, possessing drug
paraphernalia, possessing marijuana, and public intoxication. Also, at the time of
sentencing, one count of discharging a firearm into an occupied building was
2 Case: 17-15305 Date Filed: 08/03/2018 Page: 3 of 6
pending against him in state court. The PSI indicated that the sentencing guideline
range was one to seven months imprisonment.
Neither party objected to the PSI at the sentencing hearing, and the district
court adopted its findings and conclusions. The court then addressed Gonzalez-
Flores’s “extensive criminal history”—referring to it as the “elephant in the room.”
The judge explained that Gonzalez-Flores’s pending charge for discharging a
firearm into an occupied building “got [his] attention,” and the court heard
evidence about the circumstances surrounding that charge. Counsel for Gonzalez-
Flores conceded that “there is evidence to find that [he] possessed a gun and shot it
into the air” outside a nightclub, and given that evidence, suggested that a sentence
between 12 and 18 months would be reasonable. Consistent with its obligation
under the plea agreement, the government requested “a low end range sentence or
time served.” The district court found that a within-guidelines sentence was not
appropriate under the circumstances and imposed a sentence of 36 months
imprisonment.
II
A district court must select a sentence that is “sufficient, but not greater than
necessary,” to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, deter criminal conduct, and protect the public. 18 U.S.C.
§ 3553(a)(2). In making its selection, the district court must also consider (1) the
3 Case: 17-15305 Date Filed: 08/03/2018 Page: 4 of 6
nature and circumstances of the offense and the characteristics of the defendant, (2)
the kinds of sentences available, (3) the sentencing guideline range, (4) the
pertinent policy statements of the Sentencing Commission, (5) the need to avoid
sentencing disparities among similarly-situated defendants, and (6) any need for
restitution to victims. Id.
We review the reasonableness of a sentence for abuse of discretion. United
States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). We first determine if the
district court committed a significant procedural error such as miscalculating the
guideline range, treating the Sentencing Guidelines as mandatory, failing to
consider the relevant Section 3553(a) factors, selecting a sentence based on
erroneous facts, or failing to explain the sentence selected. Gall v. United States,
552 U.S. 38, 51 (2007). Assuming we find no procedural error, we then ask
whether the sentence is substantively reasonable in light of the totality of the
circumstances and the Section 3553(a) factors. Id. The party challenging the
sentence bears the burden of showing that the sentence is unreasonable. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We will vacate a sentence
as substantively unreasonable only if we are “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the Section 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
4 Case: 17-15305 Date Filed: 08/03/2018 Page: 5 of 6
F.3d 1160, 1190 (11th Cir. 2010). The guidelines are only one factor for the
district court to consider, and we “may not presume that a sentence outside the
guidelines is unreasonable.” Id. at 1187.
On appeal, Gonzalez-Flores argues only that his sentence is substantively
unreasonable. He asserts that the district court “focused unreasonably on one
factor, Mr. Gonzalez-Flores’s criminal history and pending charge, while ignoring
his mitigating characteristics.” Br. of Appellant at 7. But the weight to give to
each factor under Section 3553(a) is a matter committed to the sound discretion of
the district court, United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007), and
the court is permitted to “attach great weight to one factor over others,” United
States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015) (quotation omitted).
Here, as the district court explained, Gonzalez-Flores “already had entered the
United States illegally” multiple times, “had already committed all these other
offenses,” and then “on top of it, even if you take the best scenario,” he had shot a
firearm into the air outside a nightclub. It was reasonable for the district court to
conclude that an above-guidelines sentence was appropriate considering “the
nature and circumstances of the offense and the history and characteristics of this
particular defendant.”
Nor did the district court “ignor[e]” Gonzalez-Flores’s mitigating
circumstances. The court solicited arguments from him in mitigation and heard his
5 Case: 17-15305 Date Filed: 08/03/2018 Page: 6 of 6
arguments regarding his time in the United States, his sense of home in the United
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Case: 17-15305 Date Filed: 08/03/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15305 Non-Argument Calendar ________________________
D.C. Docket No. 5:17-cr-00123-LSC-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL GONZALEZ-FLORES, a.k.a. Carlos Manuel Gonzalez, a.k.a. Carlos Gonzalez, a.k.a. Manuel C. Gonzalez, a.k.a. Miguel Gonzalez,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(August 3, 2018) Case: 17-15305 Date Filed: 08/03/2018 Page: 2 of 6
Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
Miguel Gonzalez-Flores appeals his 36-month sentence for unlawful reentry
after deportation or removal subsequent to a felony conviction. He argues that his
sentence is substantively unreasonable because, he says, the district court placed
significant weight on his criminal history while ignoring his mitigating
characteristics and failed to adequately justify its upward variance. Because we
conclude that Gonzalez-Flores’s sentence is reasonable, we affirm.
I
Gonzalez-Flores pleaded guilty to one count of illegally reentering the
United States after having been previously removed subsequent to a felony
conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). According to the
presentence investigation report, Gonzalez-Flores, a Mexican national, has lived in
the United States since age 11. During that time, he has been convicted of felony
possession of a controlled substance, along with 18 other crimes. Those crimes
include, among other things, resisting a public officer, driving under the influence
(four times), possessing a firearm with the identification altered, possessing drug
paraphernalia, possessing marijuana, and public intoxication. Also, at the time of
sentencing, one count of discharging a firearm into an occupied building was
2 Case: 17-15305 Date Filed: 08/03/2018 Page: 3 of 6
pending against him in state court. The PSI indicated that the sentencing guideline
range was one to seven months imprisonment.
Neither party objected to the PSI at the sentencing hearing, and the district
court adopted its findings and conclusions. The court then addressed Gonzalez-
Flores’s “extensive criminal history”—referring to it as the “elephant in the room.”
The judge explained that Gonzalez-Flores’s pending charge for discharging a
firearm into an occupied building “got [his] attention,” and the court heard
evidence about the circumstances surrounding that charge. Counsel for Gonzalez-
Flores conceded that “there is evidence to find that [he] possessed a gun and shot it
into the air” outside a nightclub, and given that evidence, suggested that a sentence
between 12 and 18 months would be reasonable. Consistent with its obligation
under the plea agreement, the government requested “a low end range sentence or
time served.” The district court found that a within-guidelines sentence was not
appropriate under the circumstances and imposed a sentence of 36 months
imprisonment.
II
A district court must select a sentence that is “sufficient, but not greater than
necessary,” to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, deter criminal conduct, and protect the public. 18 U.S.C.
§ 3553(a)(2). In making its selection, the district court must also consider (1) the
3 Case: 17-15305 Date Filed: 08/03/2018 Page: 4 of 6
nature and circumstances of the offense and the characteristics of the defendant, (2)
the kinds of sentences available, (3) the sentencing guideline range, (4) the
pertinent policy statements of the Sentencing Commission, (5) the need to avoid
sentencing disparities among similarly-situated defendants, and (6) any need for
restitution to victims. Id.
We review the reasonableness of a sentence for abuse of discretion. United
States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). We first determine if the
district court committed a significant procedural error such as miscalculating the
guideline range, treating the Sentencing Guidelines as mandatory, failing to
consider the relevant Section 3553(a) factors, selecting a sentence based on
erroneous facts, or failing to explain the sentence selected. Gall v. United States,
552 U.S. 38, 51 (2007). Assuming we find no procedural error, we then ask
whether the sentence is substantively reasonable in light of the totality of the
circumstances and the Section 3553(a) factors. Id. The party challenging the
sentence bears the burden of showing that the sentence is unreasonable. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We will vacate a sentence
as substantively unreasonable only if we are “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the Section 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
4 Case: 17-15305 Date Filed: 08/03/2018 Page: 5 of 6
F.3d 1160, 1190 (11th Cir. 2010). The guidelines are only one factor for the
district court to consider, and we “may not presume that a sentence outside the
guidelines is unreasonable.” Id. at 1187.
On appeal, Gonzalez-Flores argues only that his sentence is substantively
unreasonable. He asserts that the district court “focused unreasonably on one
factor, Mr. Gonzalez-Flores’s criminal history and pending charge, while ignoring
his mitigating characteristics.” Br. of Appellant at 7. But the weight to give to
each factor under Section 3553(a) is a matter committed to the sound discretion of
the district court, United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007), and
the court is permitted to “attach great weight to one factor over others,” United
States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015) (quotation omitted).
Here, as the district court explained, Gonzalez-Flores “already had entered the
United States illegally” multiple times, “had already committed all these other
offenses,” and then “on top of it, even if you take the best scenario,” he had shot a
firearm into the air outside a nightclub. It was reasonable for the district court to
conclude that an above-guidelines sentence was appropriate considering “the
nature and circumstances of the offense and the history and characteristics of this
particular defendant.”
Nor did the district court “ignor[e]” Gonzalez-Flores’s mitigating
circumstances. The court solicited arguments from him in mitigation and heard his
5 Case: 17-15305 Date Filed: 08/03/2018 Page: 6 of 6
arguments regarding his time in the United States, his sense of home in the United
States, and his lack of access to rehabilitative treatment. Even after Gonzales-
Flores objected to the “degree of the upward variance” as “above and beyond
what’s required in this case,” the court again pointed to Gonzalez-Flores’s
significant criminal history and the pending charge related to his discharge of a
firearm. The court therefore did not ignore the mitigating circumstances, but
instead considered them and found them to be outweighed by his past conduct. See
United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (“It is sufficient that
the district court considers the defendant’s arguments at sentencing and states that
it has taken the § 3553(a) factors into account.”).
We also reject Gonzalez-Flores’s argument that the district court “failed to
adequately justify the extent” of its upward variance. Br. of Appellant at 7. The
court made its rationale clear, referring to Gonzalez-Flores’s criminal history as
“extensive” and the “elephant in the room.” The court specifically referenced
Gonzalez-Flores’s repeated re-entries into the United States, his past felonies, and
his recent possession and discharge of a firearm at a nightclub. Given the
deference owed to the district court’s decision that the Section 3553(a) factors, on
balance, justify the extent of the variance, we conclude that the district court did
not abuse its discretion.
AFFIRMED.