                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 09-15153                    JULY 27, 2010
                          Non-Argument Calendar                JOHN LEY
                        ________________________                 CLERK

                 D. C. Docket No. 08-00086-CR-FTM-99DNF

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                    versus

MANUEL GARCIA,
a.k.a. Juan Manuel Hernandez,

                                                         Defendant-Appellant.


                        ________________________

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

                                (July 27, 2010)


Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:
       Manuel Garcia appeals his 87-month sentence for illegal reentry into the

United States following deportation for an aggravated felony, in violation of 18

U.S.C. § 1326(a) and (b)(2). He contends that the district court erred by applying

a 16-level enhancement for deportation following conviction for a crime of

violence. Garcia also challenges the procedural and substantive reasonableness of

his sentence.

                                                  I.

       In 2003 Garcia was convicted of the felony offense of lewd or lascivious

exhibition in the presence of a victim under the age of 16, in violation of Fla. Stat.

800.04(7).1 The district court concluded that conviction qualified as a “crime of

violence” under the Sentencing Guidelines and applied a 16-level enhancement.

See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Garcia contends that was error. “We review de

novo whether a defendant’s prior conviction qualifies as a ‘crime of violence’

under the Sentencing Guidelines.” United States v. Harris, 586 F.3d 1283, 1284

(11th Cir. 2009); see also United States v. Ortiz-Delgado, 451 F.3d 752, 754 (11th

Cir. 2006).

       1
        Under Florida law, a person commits the felony offense of “lewd or lacivious exhibition”
when, “in the presence of a victim who is less than 16 years of age,” the person: (1) intentionally
masturbates; (2) intentionally exposes the genitals in a lewd or lacivious manner; or (3) intentionally
commits any other sexual act that does not involve actual physical or sexual contact with the victim,
including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act
involving sexual activity. See Fla. Stat. § 800.04(7)(a) (2003).

                                                  2
      The Guidelines impose a 16-level enhancement if an alien “was deported, or

unlawfully remained in the United States, after . . . a conviction for a felony that is

. . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A “crime of violence” is

defined by the Guidelines as any of the following offenses under federal, state, or

local law:

      murder, manslaughter, kidnapping, aggravated assault, forcible sex
      offenses (including where consent to the conduct is not given or is not
      legally valid, such as where consent to the conduct is involuntary,
      incompetent, or coerced), statutory rape, sexual abuse of a minor,
      robbery, arson, extortion, extortionate extension of credit, burglary of
      a dwelling, or any other offense under federal, state, or local law that
      has as an element the use, attempted use, or threatened use of physical
      force against the person of another.

Id. § 2L1.2, cmt. (n.1(B)(iii)); see also United States v. Ivory, 475 F.3d 1232, 1234

n.2 (11th Cir. 2007) (noting that “[w]e treat the commentary in the sentencing

guidelines as authoritative”).

      Garcia contends that his Florida felony conviction for lewd or lascivious

exhibition in the presence of a victim under the age of 16 does not qualify as a

“crime of violence” because it is a non-touching offense that does not involve

physical force. He asserts that in order for an offense to be a “crime of violence” it

must have as element the use, attempted use, or threatened use of physical force

against another person. Garcia’s argument is without merit. The definition of



                                           3
“crime of violence” is disjunctive. See United States v. Palomino Garcia, No. 09-

10534, 2010 WL 2011038, at *6 (11th Cir. May 21, 2010). “[A] felony qualifies

as a crime of violence under § 2L1.2 if either (1) the defendant was convicted of

one of the enumerated offenses; or (2) the use, attempted use, or threatened use of

physical force was an element of the offense.” Id. Thus, if Garcia’s conviction

fits within an enumerated offense it qualifies as a “crime of violence,” whether or

not the use of physical force is an element of the crime. See id. at *6–7; see also

id. at *11 (holding that the label a state attaches to an offense is not conclusive of

whether a prior conviction qualifies as an enumerated offense under § 2L1.2).

      The district court concluded that Garcia’s conviction under Fla. Stat. §

800.04(7) constituted “sexual abuse of a minor,” which is one of the enumerated

offenses. See U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)). Garcia argues that in

order for an offense to qualify as “sexual abuse of a minor” the offense must

involve physical contact with the victim. Because Fla. Stat § 800.04(7) does not

require physical contact with the victim, Garcia asserts that a violation of that

statute is not “sexual abuse of a minor.” In United States v. Padilla-Reyes, 247

F.3d 1158 (11th Cir. 2001), however, we held that a violation of the 1987 version

of Fla. Stat. § 800.04 was “sexual abuse of a minor” for purposes of § 2L1.2 even

though the statute encompassed acts involving no victim contact. See id. at 1162,

                                           4
1164; see also Fla. Stat. § 800.04(1987) (making it unlawful for “[a]ny person [to]

. . . [k]nowingly commit[] any lewd or lascivious act in the presence of any child

under the age of 16 years”). In light of Padilla-Reyes, the district court did not err

in concluding that Garcia’s conviction constituted “sexual abuse of a minor” and

therefore qualified as a “crime of violence” under § 2L1.2(b)(1)(A)(ii).

                                         II.

      Garcia also challenges the reasonableness of his sentence. “We review

sentencing decisions only for abuse of discretion, and we use a two-step process.”

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). First, we must

“‘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—including an explanation for any deviation from the Guidelines

range.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007)). If we find the sentence to be procedurally sound, the second step is to

review the “substantive reasonableness” of the sentence, taking into account the

totality of the circumstances, “including the extent of any variance from the

Guidelines range.” Gall, 552 U.S. at 51, 128 S. Ct. at 597. If the district court’s

                                          5
sentence is within the guidelines range, we expect that the sentence is reasonable.

See United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (“After Booker,

our ordinary expectation [of reasonableness] still has to be measured against the

record, and the party who challenges the sentence bears the burden of establishing

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

section 3553(a).”); see also United States v. Hunt, 526 F.3d 739, 746 (11th Cir.

2008) (“Although we do not automatically presume a sentence within the

guidelines range is reasonable, we ‘ordinarily . . . expect a sentence within the

Guidelines range to be reasonable.’” (quoting Talley, 431 F.3d at 788)).

      As for procedural error, Garcia contends that the district court improperly

calculated his Guidelines’ range by applying the § 2L1.2(b)(1)(A)(ii)

enhancement. He also argues that the district court failed to adequately consider

the § 3553(a) factors. Both arguments lack merit. As we have already explained,

the district court’s application of the § 2L1.2(b)(1)(A)(ii) enhancement was

proper. The district court also gave adequate consideration to the § 3553(a)

factors. Before imposing its sentence, the district court discussed several of them

on the record and expressly acknowledged that it had considered them. The

district court stated: “The Court . . . has considered all the [§ 3553(a)] factors.”




                                           6
That acknowledgment “alone is sufficient in post-Booker sentences.” United

States v. Scott, 426 F.3d 1324, 1330 (11th Cir. 2005).

      Garcia also challenges the substantive reasonableness of his 87-month

sentence, which is within his Guidelines range of 70 to 87 months imprisonment.

Garcia contends that a lesser sentence would have adequately deterred him from

engaging in future criminal conduct because he did not serve much jail time for

any of his earlier convictions. Garcia also argues that a lesser sentence was

appropriate because he was born to a poor family in Mexico and suffers from

alcoholism. Garcia has failed to carry his burden of showing that his sentence was

substantively unreasonable. The fact that he received more lenient sentences in

the past does not make his current sentence unreasonable. Given Garcia’s

significant criminal history, we cannot say that his within Guidelines sentence is

unreasonable.

      AFFIRMED.




                                         7
