                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-15940            ELEVENTH CIRCUIT
                                        Non-Argument Calendar          AUGUST 31, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 1:08-cr-00109-JOF-LTW-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellee,

                                                versus

ALEJANDRO DIAZ-MALDONADO,
a.k.a. Adan Diaz-Maldonado,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (August 31, 2011)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

         Alejandro Diaz-Maldonado appeals his 46-month sentence, imposed after
he pled guilty to being found in the United States after previously being deported,

in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal, Diaz-Maldonado argues that

the district court violated his Sixth Amendment rights by enhancing his sentence

based on a prior conviction that was not pled in the indictment, admitted by him,

nor found by a jury beyond a reasonable doubt. However, Diaz-Maldonado

concedes that this argument is foreclosed by the Supreme Court’s decision in

Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), as well

as this Court’s decisions that have recognized that Almendarez-Torres remains

binding precedent until overruled by the Supreme Court. He states that he is

simply seeking to preserve the issue for Supreme Court review because a majority

of the justices on the Court have indicated that the prior conviction exception is no

longer valid, and because the Court’s decision in Shepard v. United States, 544

U.S. 13, 125 S. Ct. 1254 (2005), supports overruling Almendarez-Torres.

      We have explicitly rejected the argument that Almendarez-Torres is no

longer good law and continue in that rejection. United States v. Gibson, 434 F.3d

1234, 1247 (11th Cir. 2006); see also United States v. Greer, 440 F.3d 1267, 1273

(11th Cir. 2006) (noting that we have “specifically rejected the argument that

Almendarez-Torres was undermined by the Apprendi decision)

      Diaz-Maldonado next argues that the district court committed procedural

                                          2
error by incorrectly calculating his criminal history score. He asserts that he

should not have received 3 criminal history points for a 1990 conviction for

selling cocaine and heroin because it was imposed more than 15 years before his

current offense commenced, and should therefore have been excluded under the

criminal history rules. Similarly, he asserts he should not been assessed one

criminal history point for his 1996 conviction because it occurred more than ten

years prior to the commencement of his current offense. Diaz-Maldonado further

argues that the district court procedurally erred by failing to make any reference to

the 18 U.S.C. § 3553(a) factors and by failing to explain the reasons for his

sentence, including a statement that the sentence was sufficient, but not greater

than necessary, to satisfy the goals of sentencing.

      We review the reasonableness of a district court’s sentence under a

deferential abuse of discretion standard of review. Gall v. United States, 552 U.S.

38, 41, 128 S. Ct. 586, 591 (2007). However, when a defendant raises sentencing

arguments for the first time on appeal, we review only for plain error. Aguillard,

217 F.3d at 1320. Here, it is unclear whether Diaz-Maldonado’s objection to the

length of his sentence adequately preserved his objection to the procedural

reasonableness of his sentence. However, we need not resolve which standard of

review applies because his arguments fail under either standard.

                                          3
      When reviewing the reasonableness of a sentence, we will first ensure “that

the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Gall, 552 U.S. at 51, 128 S. Ct. at 597. The district court need not explicitly

articulate that it has considered the § 3553(a) factors and need not discuss each

factor so long as the record indicates that the court considered the factors in some

form. See United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). Rather,

in explaining a sentence, “[t]he sentencing judge should set forth enough to satisfy

the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007). Section 3553(a)

provides that a sentencing court “shall impose a sentence sufficient, but not greater

than necessary, to comply with the purposes [of sentencing].” 18 U.S.C.

§ 3553(a).

      The Sentencing Guidelines provide that a defendant should be assessed

three criminal history points “for each prior sentence of imprisonment exceeding

one year and one month.” U.S.S.G. § 4A1.1(a). Such a sentence must have been

                                          4
imposed “within fifteen years of the defendant’s commencement of the instant

offense” to be counted. U.S.S.G. § 4A1.2(e)(1). Similarly, the probation officer is

to add one criminal history point for other prior sentences not otherwise covered.

U.S.S.G. § 4A1.1(c). However, such a sentence must be “imposed within ten

years of the defendant’s commencement of the instant offense.” U.S.S.G.

§ 4A1.2(e)(2). “Any prior sentence not within the time periods specified . . . is not

counted.” U.S.S.G. § 4A1.2(e)(3).

      We have determined that, under 8 U.S.C. § 1326, “the crime of being

‘found in’ the United States commences when the alien enters the United States

and is not completed until the defendant’s arrest.” United States v. Scott, 447 F.3d

1365, 1368 (11th Cir. 2006) (quotation omitted). Thus, the date on which an alien

is “found in” the United States is the date the offense was completed. See id.

(stating that the crime of illegal reentry is completed when a defendant was found

in the United States). Conversely, the offense conduct begins “when the alien

illegally enters the United States” and therefore, “can run over a long period of

time.” Id. at 1369.

      In this case, the district court did not procedurally err by assessing

Diaz-Maldonado four total criminal history points for his 1990 and 1996

convictions. It is undisputed that Diaz-Maldonado re-entered the United States in

                                          5
October 2004 after being deported. He was then “found in” the United States on

February 22, 2008, when Immigration and Customs Enforcement was notified of

his presence in the United States. See Scott, 447 F.3d at 1368. Accordingly, his

§ 1326 offense commenced in October 2004 and ended in February 2008. See

Scott, 447 F.3d at 1368. Therefore, the district court properly assessed

Diaz-Maldonado 3 criminal history points because his 1990 sentence was imposed

within 15 years of the beginning of his instant § 1326 offense. See U.S.S.G.

§ 4A1.1(a). Similarly, the court properly assessed him one criminal history point

for his 1996 sentence because it occurred within ten years of the beginning of his

instant § 1326 offense. See U.S.S.G. § 4A1.1(c).

      The district court also did not procedurally err by failing to explicitly state

that it had considered the § 3553(a) factors or by omitting a statement that

Diaz-Maldonado’s sentence was sufficient, but not greater than necessary, to meet

the goals of sentencing. See Dorman, 488 F.3d at 944. The record indicates that

the district court considered the § 3553(a) factors because the court (1) questioned

the government about its authority to impose a sentence under § 3553 rather than a

guidelines sentence, (2) determined that the sentencing calculations in the PSI

were correct, and (3) determined that the Guidelines were properly applied, and

because (4) Diaz-Maldonado referenced his history and characteristics and the

                                          6
circumstances of his crime in arguing for a sentence at the low-end of the

guidelines range. See Dorman, 488 F.3d at 944 (concluding that, despite failing to

cite § 3553(a), the district court evaluated the statutory factors because it

considered appellant’s objections, his motion for a downward departure, and the

PSI, all of which implicated several of the factors); (R4 at 6-7, 19-20). Thus, the

record set forth enough to demonstrate that the sentencing judge “considered the

parties’ arguments and ha[d] a reasoned basis for exercising his own legal

decisionmaking authority.” Rita, 551 U.S. at 356, 127 S. Ct. at 2468.

      Finally, neither we nor the Supreme Court have mandated that district

courts follow a precise script when imposing a particular sentence. The district

court was not required to “incant the specific language” of § 3553(a) to specify

that Diaz-Maldonado’s sentence was sufficient, but not greater than necessary, to

meet the goals of sentencing. See United States v. Bonilla, 463 F.3d 1176, 1182

(11th Cir. 2006) (holding that, when imposing a sentence, the district court need

not “incant the specific language used in the guidelines”).

      Accordingly, after review of the record and consideration of the parties’

briefs, we conclude that the district court properly considered Diaz-Maldonado’s

prior convictions when imposing his sentence and did not otherwise commit

procedural error. We therefore affirm his 46-month sentence.

                                           7
AFFIRMED.1




1
    Diaz-Maldonado’s request for oral argument is denied.

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