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            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

                                           3
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

                                          4
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



                                          5
the § 3553(a) factors and the record as a whole, the sentence was substantively

reasonable. Accordingly, we affirm.

AFFIRMED.




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