The opinion
[DO NOT PUBLISH] \
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 03, 2008
No. 07-15949 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-60200-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARIO MOLINA-CRUZ,
a.k.a. Mario Cruz-Viatoro,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 3, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Jose Santos Molina-Cruz appeals his 46-month sentence for illegal reentry
into the United States after deportation, in violation of 18 U.S.C. § 1326(a) &
(b)(2). On appeal, he argues that the district court erred when it enhanced his
sentence for previously having been deported for conviction of an aggravated
felony, and consequently sentenced him above the two-year maximum of
§ 1326(a), and beyond the sentencing range authorized by the guidelines, when the
aggravated felony was not charged in the indictment. He further argues that his
sentence was unreasonable.
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error.
I.
Molina-Cruz argues that the indictment did not charge that he had been
deported after having been convicted of an “aggravated felony,” nor did he
confess to such, nor was it proven to a jury. Molina-Cruz contends that enhancing
his sentence for illegal reentry on the basis of the prior aggravated felony was
therefore in violation of his Fifth and Sixth Amendment rights.
Where an appellant objects to the enhancement of his sentence, we review
the sentence de novo, but will reverse only for harmful error. United States v. Paz,
405 F.3d 946, 948 (11th Cir. 2005) (per curiam).
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In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140
L. Ed. 2d 350 (1998), the Supreme Court held that recidivism was not an element
of the offense of illegal re-entry in the United States. Id. at 247, 118 S. Ct. 1219 at
1233. Accordingly, under Almendarez-Torres, prior convictions can be
considered and used to enhance a defendant’s sentence without being alleged in
the indictment or proved beyond a reasonable doubt. Id. at 244-46, 118 S. Ct. at
1231-32. “Although recent decisions, including Shepard v. United States, 544
U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), may arguably cast doubt on
the future prospects of Almendarez-Torres’s holding regarding prior convictions,
the Supreme Court has not explicitly overruled Almendarez-Torres. As a result,
we must follow Almendarez-Torres.” United States v. Camacho-Ibarquen, 410
F.3d 1307, 1316 n.3 (11th Cir. 2005) (per curiam).
Because we have held that Almendarez-Torres remains good law, the
district court did not err in enhancing Molina-Cruz’s sentence on the basis of prior
convictions.
II.
Molina-Cruz argues that the district court placed unjustified reliance upon a
single § 3553(a) factor (criminal history) without proper consideration of other
factors, thereby rendering his sentence unreasonable. Molina-Cruz asserts that
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given his background, personal characteristics, and the nature of his present illegal
reentry, a sentence within the guideline range was unreasonable; instead, the §
3553(a) factors necessitated a sentence below the guideline range.
We review a final sentence for reasonableness. United States v. Talley, 431
F.3d 784, 785 (11th Cir. 2005) (per curiam). In conducting this review, we apply
a deferential abuse of discretion standard. Gall v. United States, 552 U.S. ___,
128 S. Ct. 586, 591, 597, 169 L. Ed. 2d 445 (2007).
A district court’s sentencing decision is procedurally sound if the court
correctly calculated the defendant’s sentencing range, treated the guidelines as
advisory, considered the § 3553(a) factors, selected a sentence that was based on
facts that were not clearly erroneous, and adequately explained the chosen
sentence, including an explanation for any deviation from the defendant’s
sentencing range. Gall, 552 U.S. ___, 128 S. Ct. at 597; United States v. Pugh,
515 F.3d 1179, 1190 (11th Cir. 2008). A “district court need only ‘acknowledge’
that it ‘considered the § 3553(a) factors[,]’ and need not discuss each of these
factors in either the sentencing hearing or in the sentencing order[.]” United
States v. Amedeo, 487 F.3d 823, 833 (11th Cir.) (first alteration in original)
(citations omitted), cert. denied, 128 S. Ct. 671 (2007). A district court’s
sentencing decision is substantively reasonable if the court acted within its
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discretion in determining that the § 3553(a) factors supported the sentence and
justified any deviation from the defendant’s sentencing range. See Gall, 552 U.S.
__, 128 S. Ct. at 600.
The factors presented in § 3553(a) include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to
reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(3) the need for deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the
kinds of sentences available; (7) the Sentencing Guidelines
range; (8) pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to
victims.
Talley, 431 F.3d at 786.
Here, the district court committed no procedural error in calculating the
guideline range. In considering Molina-Cruz’s personal circumstances, the court
acknowledged the conditions of violence in El Salvador. The court also took
Molina-Cruz at his word that a prior conviction for felony battery was less serious
than what was presented in the Presentence Investigatory Report. After expressly
stating that it considered the § 3553(a) factors, the court imposed a 46-month
sentence that was in the middle of the recommended guideline range. In light of
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the § 3553(a) factors and the record as a whole, the sentence was substantively
reasonable. Accordingly, we affirm.
AFFIRMED.
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