United States v. Juan Carlos Cordova-Alvarado

Case: 17-11277 Date Filed: 10/17/2017 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-11277 Non-Argument Calendar ________________________ D.C. Docket No. 1:16-cr-00391-WSD-JKL-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN CARLOS CORDOVA-ALVARADO, a.k.a. Jose Carlos Argeta, a.k.a. Juan Carlos Cordova-Alarado a.k.a. Juan Carlos Cordova-Alvardo, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (October 17, 2017) Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges. PER CURIAM: Juan Carlos Cordova-Alvarado appeals his 15-month sentence following his conviction for one count of unlawful reentry into the United States by a previously Case: 17-11277 Date Filed: 10/17/2017 Page: 2 of 7 deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Cordova- Alvarado argues that his sentence was substantively unreasonable because the district court refused to grant him a downward departure based on his cultural assimilation in the United States, and because the district court failed to credit (or consider) the three months he spent in a U.S. Immigration and Customs Enforcement (“ICE”) detention center. We review our subject matter jurisdiction de novo. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). We lack jurisdiction to review a district court’s discretionary refusal to grant a downward departure, unless the district court incorrectly believed that it lacked the authority to depart from the guideline range. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006). Further, we will assume that the sentencing court properly understood its authority, absent a record indication to the contrary. Id. at 1228. Where appropriate, we review the substantive reasonableness of a sentence under the deferential abuse of discretion standard of review. United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010) (en banc). In conducting our review, we consider the totality of the circumstances and whether the statutory factors in § 3553(a) support the sentence in question. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). The party challenging the sentence bears the burden of showing it is unreasonable in light of the record and the § 3553(a) factors. 2 Case: 17-11277 Date Filed: 10/17/2017 Page: 3 of 7 United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not apply a presumption of reasonableness to a sentence imposed within the guidelines, we ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). That a sentence is below the statutory maximum penalty is a further indicator of reasonableness. See Gonzalez, 550 F.3d at 1324 (finding a sentence reasonable in part because it was well below the statutory maximum). A district court must impose a sentence “sufficient, but not greater than necessary, to comply with the purposes” listed in § 3553(a)(2), including the need to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct, and protect the public from future crimes ...

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