                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-10425                ELEVENTH CIRCUIT
                                                         DECEMBER 16, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                 D. C. Docket No. 08-10069-CR-KMM


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JORGE MARTINEZ-GARCIA,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                          (December 16, 2009)


Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

       Jorge Martinez-Garcia appeals the reasonableness of his 36-month sentence

imposed for conspiracy to encourage and induce aliens to enter the United States, 8

U.S.C. § 1324(a)(1)(A)(v)(I). No reversible error has been shown; we affirm.1

       We review a final sentence for procedural and substantive reasonableness.

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008), cert. denied, 129

S.Ct. 2848 (2009). A sentence may be procedurally unreasonable if the district

court fails to consider the appropriate statutory factors or explain adequately the

chosen sentence. Id. We evaluate the substantive reasonableness of a sentence,

whether inside or outside the guidelines range, under a deferential abuse-of-

discretion standard. Gall v. United States, 128 S.Ct. 586, 597 (2007).

       The party challenging the reasonableness of the sentence bears the burden of

establishing that the sentence is unreasonable in the light of both the record and the

18 U.S.C. § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005). Under section 3553(a), a district court should consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

need for the sentence to provide adequate deterrence, respect for the law, and




       1
        Martinez-Garcia’s sentence was twice the high end of the applicable 12-to-18-month
guidelines range.

                                              2
protection of the public, policy statements of the Sentencing Commission,

provision for the medical and educational needs of the defendant, and the need to

avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).

      We conclude that Martinez-Garcia’s sentence is reasonable. Although his

36-month sentence varied upward from the top of the advisory guidelines range by

18 months, the sentence was well below the 10-year statutory maximum he faced.

See 8 U.S.C. § 1324(a)(1)(B)(i); United States v. Valnor, 451 F.3d 744, 751-52

(11th Cir. 2006) (affirming an upward variance and observing that the ultimate

sentence was appreciably below the statutory maximum). In addition, the district

court explained that it considered the section 3553(a) factors and that a sentence

above the guidelines range was appropriate in Martinez-Garcia’s case. The

sentencing court specifically noted that (1) Martinez-Garcia committed the instant

alien smuggling offense only 14 months after illegally entering the United States;

(2) the boat containing the 11 illegal aliens contained an excessive amount of fuel,

creating a dangerous situation; and (3) alien smuggling compromises the security

of the United States and impacts negatively on the United States Coast Guard’s

ability to perform other vital duties. The court also noted the importance of

deterring Martinez-Garcia and protecting the public from further crimes by him.

See 18 U.S.C. § 3553(a)(1), (2)(A)-(C).



                                          3
       Martinez-Garcia argues that the district court based its sentencing decision

on its own views about the seriousness of the offense and not on Martinez-Garcia’s

acts in the offense.2 But, that the court considered both Martinez-Garcia’s acts

(including his illegal entry into the United States) in addition to the seriousness of

the offense, is clear. Both factors were relevant considerations. And “[t]he weight

to be accorded any given [section] 3553(a) factor is a matter committed to the

sound discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th

Cir. 2007) (internal quotation and citation omitted).

       Martinez-Garcia also argues that the court failed to consider the need to

avoid unwarranted sentencing disparities between similarly-situated defendants

because other alien-smuggling defendants sentenced by the same judge on the

same day as he received within-range sentences. But the “avoidance of

unwarranted disparities was clearly considered by the Sentencing Commission

when setting the Guidelines ranges”; so, a district court necessarily gives weight

and consideration to the need to avoid unwarranted disparities when it correctly




       2
        Martinez-Garcia also contends that the court impermissibly based its sentence on the
need to deter the local community. But nothing indicates that the court based its sentence on
such reasoning: instead, the court noted the need to deter Martinez-Garcia and to protect the
community from further crimes by him.

                                                4
calculates and carefully reviews the guidelines range. See Gall, 128 S.Ct. at 599.3

We must give due deference to the district court’s determination that Martinez-

Garcia’s history and characteristics, the nature and seriousness of his offense, and

the need for deterrence warranted the extent of the variance here. See United

States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008); Gall, 128 S.Ct. at 597

(explaining that a sentencing judge “must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to support the degree of the

variance”).

       Based on the evidence in the record, we conclude that Martinez-Garcia’s

sentence was reasonable and that the district court adequately justified its upwardly

variant sentence. Although Martinez-Garcia disagrees with the district court’s

assessment of several of the section 3553(a) factors, we -- on this record -- cannot

say that the court’s careful consideration of the factors and its conclusion were

unreasonable.

       AFFIRMED.




       3
        Moreover, the sentencing court was aware of the need to avoid unwarranted disparities
as evidenced by its comment that Martinez-Garcia’s sentence was substantially smaller than the
sentence imposed on his codefendant. And when sentencing other alien-smuggling defendants,
the court expressly distinguished their circumstances from other defendants sentenced earlier
that day for similar offenses.

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