                                                            [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                     FEBRUARY 15, 2008
                                                     THOMAS K. KAHN
                               No. 07-12724
                                                          CLERK
                           Non-Argument Calendar
                         ________________________

                     D. C. Docket No. 06-20800-CR-DLG

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                     versus

VICTORINO F. CHAVEZ,

                                                      Defendant-Appellant.

                         ________________________

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

                             (February 15, 2008)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Victorino Chavez appeals his 48-month sentence for illegal reentry into the
United States by a deported alien. Chavez argues that his Fifth and Sixth

Amendment rights were violated when the district court used prior convictions not

alleged in the indictment or proven to a jury beyond a reasonable doubt to enhance

his sentence. He also argues that his sentence is unreasonable because the district

court weighed the nature of this prior conviction too heavily, failing sufficiently to

consider the other factors set out in 18 U.S.C. § 3553(a). We AFFIRM.

                                 I. BACKGROUND

      A federal grand jury indicted Chavez on one count of illegal reentry after

deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Chavez initially pled

not guilty, but ultimately changed his plea. At the change of plea hearing, after

Chavez stated that he was “pleading guilty to the indictment,” the magistrate judge

informed him that he had “been charged that on or about November 17th, after

having previously been removed from the United States on July 27, 2000, [he had

been] found here in the United States and [he] had not previously obtained

approval from the attorney general to return to the United States.” R3 at 9. The

magistrate judge then asked the government what facts it would have proved had

the case gone to trial. The government stated that it would have proved that

Chavez had been deported after previously having been “convicted of one count of

incest and 3 counts of unlawful sexual activity with a minor.” Id. at 10. Chavez



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admitted that the government’s recitation of these facts was accurate. Id.

      In preparation for sentencing, the probation office confirmed that Chavez

had been physically removed from the United States in July 2000 following

convictions on one count of incest and three counts of unlawful sexual activity

with his 17-year-old niece, who had thereby become pregnant; and that he had

illegally reentered the United States at some point after that, without inspection by

an immigration officer. In November 2006, Chavez was found at the Miami-Dade

County Jail. An Immigration and Customs Enforcement (“ICE”) officer

interviewed Chavez, who waived his Miranda rights and admitted that he had

entered the country without permission. Chavez’s fingerprints matched those on a

warrant of deportation dated 1 May 2000.

      The probation officer assigned Chavez a base offense level of 8, pursuant to

U.S.S.G. § 2L1.2(a) (Nov. 2006). Chavez received a 16-level enhancement

because his conviction for unlawful sexual activity counted as a crime of violence

for the purpose of U.S.S.G. § 2L1.2(b)(1)(A). He received a three-level reduction

for acceptance of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a) and (b). The

probation officer assigned Chavez a criminal history category of III based on his

prior convictions. Chavez’s total offense level of 21 and criminal history category

of III resulted in a sentencing range of 46-57 months of imprisonment. No



                                           3
objections were filed to the presentence investigation report.

      At the sentencing hearing, the district court adopted the probation officer’s

calculations since neither party had any objections. The court then heard argument

from each side as to an appropriate sentence. The government, anticipating

Chavez’s request for a below-Guidelines sentence, requested a sentence at least at

the low end of the Guidelines range and reminded the court of the nature of

Chavez’s criminal history.

      Chavez offered a number of reasons for a sentence below the Guidelines

range. He explained that his prior conviction had arisen out of a consensual

relationship with his 17-year old niece. He pointed out that his 16-level

enhancement was identical to the enhancement that an individual who had illegally

reentered the United States with a prior conviction for rape or murder would have

received. He argued that his prior convictions had been accounted for by both the

16-level enhancement and a higher criminal history category, and that he had

already been punished for his prior offenses in the first place.

      Chavez then explained that he had 13-year old twins living in the United

States, and that he had returned to the United States because he wanted to provide

support and be a part of their lives. Chavez personally addressed the court,

apologizing for his return and requesting the lowest possible sentence.



                                           4
       After stating that it had considered the statements of both parties, the

presentence investigation report, the advisory guidelines, and the statutory factors,

the court sentenced Chavez to 48 months in prison. In response to a question from

the court, Chavez stated that he had no objections to the sentence or to the manner

in which it had been imposed; however, he has timely appealed his sentence.

                                    II. DISCUSSION

       Because Chavez did not raise any objection in the district court, we review

only for plain error. United States v. Day, 465 F.3d 1262, 1264 (11th Cir. 2006)

(per curiam). “An appellate court may not correct an error the defendant failed to

raise in the district court unless there is: (1) error, (2) that is plain, and (3) that

affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005) (quotation omitted). Once these conditions have been met, we may

notice a forfeited error only when that “error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. An error is not plain “if

it is not clear under current law.” United States v. Chau, 426 F.3d 1318, 1322

(11th Cir. 2005) (per curiam) (quotation omitted).

       The Supreme Court has held that the government need not allege in its

indictment or prove beyond a reasonable doubt that a defendant had prior

convictions in order for the district court to use those convictions for the purpose



                                              5
of enhancing a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 243-

47, 118 S. Ct. 1219, 1230-33 (1998). The Court also clarified that 8 U.S.C. §

1326(b)(2) sets forth a sentencing factor as to the offense described in § 1326(a)

and “not a separate criminal offense.” Id. at 235, 118 S. Ct. at 1226. We have

noted that, “although recent decisions, including Shepard v. United States, 544

U.S. 13, 125 S. Ct. 1254 (2005), may arguably cast doubt on the future prospects

of Almendarez-Torres[,] . . . the Supreme Court has not explicitly overruled [it].”

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005) (per

curiam). Supreme Court “decisions remain binding precedent until [the Court]

see[s] fit to reconsider them, regardless of whether subsequent cases have raised

doubts about their continuing vitality.” Hohn v. United States, 524 U.S. 236,

252-53, 118 S. Ct. 1969, 1978 (1998).

      Accordingly, Chavez’s argument that the district court violated his Fifth and

Sixth Amendment rights by using a prior conviction neither alleged in the

indictment nor proven beyond a reasonable doubt is foreclosed by Supreme Court

precedent. The increase in Chavez’s guideline offense level was made under an

advisory guidelines scheme and, thus, is not constitutional error. Chau, 426 F.3d

1318, 1323 (11th Cir. 2005) (noting that United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005) made the Sentencing Guidelines advisory and rejected the



                                          6
proposition that the Sixth Amendment was violated when the sentencing court

made factual determinations beyond the defendant’s admissions under an advisory

guidelines scheme). Therefore, the district court did not err, let alone plainly err, in

utilizing Chavez’s prior convictions to increase his guideline offense level

      Next, Chavez argues that his sentence was unreasonable because the district

court relied upon a single factor, his prior conviction for a sexual offense, to

determine his sentence and, thus, that his sentence was greater than necessary to

comply with the statutory goals of sentencing. We review a final sentence imposed

by a district court for reasonableness. United States v. Winingear, 422 F.3d 1241,

1244 (11th Cir. 2005) (per curiam). “Our review for reasonableness is

deferential.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)

(quotation omitted). Accordingly, as the Supreme Court has clarified, we review

for abuse of discretion. Gall v. United States, __ U.S.__, __, 128 S. Ct. 586, 591

(2007).

      After Booker, a sentencing court must first correctly calculate the advisory

guideline range and then consider the factors set out in 18 U.S.C. § 3553(a).

United States v. Valnor, 451 F.3d 744, 749 (11th Cir. 2006). The § 3553(a)

factors include:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;

                                           7
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote
             respect for the law, and to provide just punishment for
             the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the
             defendant; and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range established [by the
      Guidelines] . . . ;
      (5) any pertinent policy statement . . . ;
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of similar
      conduct; and
      (7) the need to provide restitution to any victims of the offense.

§ 3553(a)(1)-(7). In reviewing a sentence for reasonableness, we consider these

factors and the reasons offered by the district court for imposing a particular

sentence. United States v. Williams, 435 F.3d 1350, 1355 (11th Cir. 2006) (per

curiam). “[T]here is a range of reasonable sentences from which the district court

may choose,” and the burden of establishing that the sentence is unreasonable in

light of the record and the § 3553(a) factors lies with the party challenging the

sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam).

“The weight to be afforded any given argument made pursuant to one of the §

3553(a) factors is a matter firmly committed to the discretion of the sentencing

judge and is beyond our review.” See United States v. Fernandez, 443 F.3d 19, 32

                                           8
(2d Cir. 2006); see also Talley, 431 F.3d at 788. “[A]n acknowledgment by the

district [court] that [it] has considered the § 3553(a) factors” satisfies its

obligations under Booker. United States v. Amedeo, 487 F.3d 823, 832 (11th

Cir.), cert. denied, 128 S. Ct. 671 (2007).

       We do not presume reasonable a sentence within the properly calculated

guidelines range. See United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir. 2006).

The Supreme Court has, however, upheld other circuits’ decisions affording such a

presumption, noting that a sentence, independently calculated by the district court

in accordance with Booker, that falls within the properly calculated guidelines

range “significantly increases the likelihood that the sentence is a reasonable one.”

Rita v. United States, __ U.S. __, 127 S. Ct. 2456, 2463 (2007). Accordingly, the

district court need not provide a “lengthy explanation” when imposing a within-

guidelines sentence as long as the record establishes that the district court

considered the § 3553(a) factors and the parties’ arguments. United States v.

Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (per curiam).

       Here, the district court stated that it had considered the advisory guideline

range, the parties’ arguments, and the statutory factors. See Amedeo, 487 F.3d at

832. The district court’s acknowledgment of the statutory factors was cursory, but

it did hear argument from Chavez regarding his desire to take care of his children,



                                              9
his remorse for his actions, and his arguments regarding the nature of his offense

and the calculation of his sentence. Finally, the sentence imposed was within the

Guidelines range. For all of these reasons, we find no abuse of discretion. The

sentence was not unreasonable.1

                                     III. CONCLUSION

       Chavez appeals his 48-month sentence for illegal reentry into the United

States. Because we find that the district court did not err in enhancing his sentence

based on a prior conviction not specifically alleged in the indictment or proven to a

jury, and because we find the sentence imposed not to have been unreasonable, we

AFFIRM.




       1
        Chavez cites United States v. Crisp, 454 F.3d 1285 (11th Cir. 2006), in support of his
argument. Crisp dealt with the improper consideration of a single § 3553(a) factor, restitution, in
connection with a significant downward departure from the Guidelines range. See id. at 1292.
Because the sentence imposed here was within the Guidelines range and because Chavez has not
shown that the district court failed to consider the other § 3553(a) factors, Crisp is inapplicable.

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