                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 11-12988          NOVEMBER 30, 2011
                                        Non-Argument Calendar         JOHN LEY
                                                                        CLERK
                                      ________________________

                              D.C. Docket No. 1:09-cr-20823-CMA-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                 versus

JORGE ANDRES VARELA,

lllllllllllllllllllllllllllllllllllllll                             Defendant-Appellant.

                                     ________________________

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

                                           (November 30, 2011)

Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:

         On October 13, 2009, the district court sentenced Jorge Andres Varela to

time served and two years of supervised release after he pled guilty to passport
fraud, in violation of 18 U.S.C. § 1544, and falsely representing himself to be a

United States citizen, in violation of 18 U.S.C. § 911. On June 16, 2011, the

district court revoked Varela’s supervised release and sentenced him to 24

months’ imprisonment. Varela raises two issues on appeal. First, he argues that

the district court committed multiple procedural errors in determining his

sentence. Second, he argues that his sentence is substantively unreasonable. After

review, we affirm.

                                           I.

      Varela asserts that the district court committed procedural error when it:

(1) failed to calculate his guidelines range; (2) failed to consider all of the

§ 3553(a) factors; (3) failed adequately to justify an upward variance; and (4)

impermissibly based his sentence on his immigration status.

      We generally review the reasonableness of a sentence under a deferential

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007).

However, where a defendant fails to object to a sentencing error before the district

court, we review the sentence for plain error. See United States v. Castro, 455

F.3d 1249, 1251 (11th Cir. 2006). An error constitutes invited error and cannot

serve as grounds for reversal if the appealing party induces or invites the district




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court into making the error. United States v. Brannan, 562 F.3d 1300, 1306 (11th

Cir. 2009).

      First, Varela argues that the district court committed procedural error by not

formally calculating the guideline range. Because Varela affirmatively agreed that

the guidelines range proffered by the government was correct, the doctrine of

invited error precludes appellate review of this argument. See id.

      Next, Varela argues that the district court failed to consider all of the

§ 3553(a) factors. Varela failed to raise this issue before the district court. Thus,

it is subject to plain error review. See Castro, 455 F.3d at 1251. Upon

determining that a defendant violated a condition of supervised release, a district

court may revoke the term of supervision and impose a term of imprisonment after

considering certain § 3553(a) factors. United States v. Campbell, 473 F.3d 1345,

1348 (11th Cir. 2007). One of the factors a court must consider is the applicable

guidelines range. Id. Because the Guidelines have always been advisory for

sentences imposed upon revocation of supervised release, it is sufficient that there

be “some indication” that the district court “was aware of and considered” the

sentencing range established under the Guidelines. Id. at 1349 (quotations

omitted). Although a sentencing court is not required to state on the record that it

has explicitly considered each of the § 3553(a) factors or to discuss each factor, it

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should set forth enough to satisfy an appellate court that it has considered the

parties’ arguments and has a reasoned basis for exercising its legal decision-

making authority. See United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir.

2007).

      Here, the district court implicitly adopted the guideline range submitted by

the government and agreed to by Varela. The court acknowledged the guidelines

calculation by stating that a within-guidelines sentence was not appropriate. Thus,

the district court “was aware of and considered” the guidelines range. See

Campbell, 473 F.3d at 1349 (quotations omitted). The court discussed Varela’s

history and characteristics and the nature, circumstances, and seriousness of the

violations. See 18 U.S.C. § 3553(a). The court’s concern that Varela had failed to

appreciate its prior leniency toward him indicates that the court also implicitly

considered the need to promote respect for the law and deter additional criminal

conduct. See id. Although the district court did not explicitly state that it had

considered the § 3553(a) factors, the record establishes that it considered the

parties’ arguments and had a reasoned basis for exercising its legal decision-

making authority. See Agbai, 497 F.3d at 1230.

      Next, Varela argues that the district court failed to adequately justify its

upward variance. Varela failed to raise this issue before the district court. Thus, it

                                          4
is subject to plain error review. See Castro, 455 F.3d at 1251. If a district court

decides that a sentence outside of the Guidelines is warranted, it must consider the

extent of the deviation and ensure that the § 3553(a) factors, as a whole, justify the

degree of the variance. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.

2008); see also United States v. Irey, 612 F.3d 1160, 1186-87 (11th Cir. 2010) (en

banc) (explaining that the justification for the variance must be “sufficiently

compelling” to support the extent of the deviation), cert. denied, 131 S. Ct. 1813

(2011). We will remand on grounds that a sentence is procedurally unreasonable

if a district court fails adequately to explain its deviation from the guidelines range

in a way that allows for meaningful appellate review. United States v. Livesay,

525 F.3d 1081, 1093 (11th Cir. 2008).

      Here, the district court concluded that, based on the § 3553(a) factors, a

within-guidelines sentence was not appropriate. Although it might have been

prudent for the court to have provided a more thorough justification for the extent

of the deviation, the court’s discussion provides enough explanation to allow for

meaningful appellate review. See id.

      Finally, Varela argues that the district court impermissibly based his

sentence on his immigration status. We generally review de novo whether a factor

considered by a district court in sentencing is impermissible. United States v.

                                          5
Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). A sentence based

entirely upon an impermissible factor is unreasonable because such a sentence

does not achieve the purposes of § 3553(a). Id. A sentencing court may not

impose a more severe sentence than it would have otherwise based on unfounded

assumptions regarding one’s immigration status. Id. at 1253. Although the district

court discussed Varela’s immigration status, the record does not indicate that the

court based its sentence in any way—much less entirely—on that status. See id. at

1252. We find no procedural errors in Varela’s sentence.

                                          II.

      We review the substantive reasonableness of a sentence for abuse of

discretion, in light of the totality of the circumstances and the § 3553(a) factors.

Gall, 552 U.S. at 51; see also United States v. Sweeting, 437 F.3d 1105, 1106-07

(11th Cir. 2006). The party challenging the sentence has the burden of

establishing that it is unreasonable. United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). We will reverse only if left with the “definite and firm

conviction” that a district court committed a clear error of judgment in weighing

the § 3553(a) factors by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case. Irey, 612 F.3d at 1190.




                                           6
      The reference in § 3553(a) to avoidance of sentencing disparities concerns

defendants with similar records who have been found guilty of similar conduct.

United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009). The need to

avoid unwarranted sentencing disparities is only one of several factors to be

weighed against each other in order to determine the proper sentence. See Irey,

612 F.3d at 1197 n.24. The maximum prison sentence that may be imposed for

violations of conditions of supervised release upon a first-time conviction of

passport fraud is 24 months. See 18 U.S.C. §§ 1544, 3583(e)(3), 3559(a)(3).

      As discussed above, the district court considered the § 3553(a) factors prior

to imposing its sentence. Varela has not cited any cases in which defendants

similarly situated to him received substantially different sentences. Varela’s 24-

month sentence—the statutory maximum—is not outside the range of reasonable

sentences dictated by the facts of the case. See Irey, 612 F.3d at 1190; see also 18

U.S.C. § 3583(e)(3). Accordingly, we affirm Varela’s sentence.

      AFFIRMED.




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