                                                                 [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No. 11-12118           NOVEMBER 16, 2011
                                        Non-Argument Calendar          JOHN LEY
                                                                         CLERK
                                      ________________________

                           D.C. Docket No. 1:10-cr-00533-CAP-RGV-1

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                          lPlaintiff-Appellee,

                                                 versus

GIL GONZALEZ-SORIA,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellant.

                                     ________________________

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

                                           (November 16, 2011)

Before CARNES, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         Gil Gonzalez-Soria pleaded guilty to illegally reentering the United States
after he was deported and was sentenced to 46 months’ imprisonment,1 at the

bottom of the applicable guidelines range. He appeals that sentence, contending

that it is procedurally unreasonable because the district court failed to articulate

the sentencing factors set out in 18 U.S.C. § 3553(a). He also argues that the

sentence is substantively unreasonable, both because the sentence enhancement

dictated by U.S.S.G. § 2.L1.2(b)(1)(B), which he received, does not represent an

exercise of the Sentencing Commission’s institutional expertise, and also because

his sentence is longer than necessary. After careful review, we affirm.

                                                I.

       In July 2010, Gonzalez-Soria was arrested by state authorities and charged

with, among other things, terroristic threats and acts. He subsequently pleaded

guilty to disorderly conduct. On the day he was released, Gonzalez-Soria admitted

to federal officers that he was a Mexican citizen who had reentered the United

States illegally after being deported in 2008. He pleaded guilty on March 4, 2011

to one count of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2).

       Gonzalez-Soria has previously been deported four times since 1997. And,

on at least 19 separate occasions, he has been apprehended by border control and


       1
         The district court initially pronounced a 48-month sentence, but later lowered the
sentence after defense counsel pointed out that Gonzalez-Soria had been in administrative
custody for two months. The judgment entered reflects a term of 46 months.

                                                2
voluntarily returned to Mexico. This case marks the third time he has pleaded

guilty to illegal reentry. He also has been convicted of multiple state charges,

including possession of cocaine with intent to distribute, for which he was

sentenced to a year in state prison followed by four years’ probation.

      All of this information was contained in a presentence investigation report

(PSI), to which Gonzalez-Soria did not object. The PSI also calculated his

guidelines range as 46-57 months. That calculation included an enhancement,

pursuant to U.S.S.G § 2L1.2(b)(1)(B), for reentry after conviction of a drug

trafficking offense for which the defendant served fewer than 13 months.

      At the sentencing hearing, the district court asked for any additional

objections to the PSI, but Gonzalez-Soria’s counsel demurred, saying he had “no

guideline issues” with the PSI. The court adopted the PSI’s factual statements.

Defense counsel argued that Gonzalez-Soria’s reason for continually reentering

this country—providing for his disabled son—was understandable, and, on that

basis, asked that “at the very least” the court should “impose a guideline sentence

at the lower end.” He also pointed out that the sentence enhancement Gonzalez-

Soria received based on his drug trafficking conviction was longer than the

amount of time he had served for that conviction. The government agreed

Gonzalez-Soria’s reasons for reentry were understandable and relevant to his

                                          3
sentence, but asserted that his repeated attempts to reenter the country and

commission of crimes in the United States when he succeeded, showed disdain for

the law and militated in favor of a sentence within the guidelines range.

       The district court found Gonzalez-Soria’s recidivism “just unbelievable.”

The court also noted, and Gonzalez-Soria did not dispute, that medical care for his

disabled son was provided through Medicaid. The court then pronounced a

sentence of 46 months.

                                                II.

       Our review of the sentence a district court imposes is twofold. United

States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we must “ensure that

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

consider the § 3553(a) factors . . . .” Gall v. United States, 552 U.S. 38, 51 (2007).

If the sentence is procedurally reasonable, we must then determine whether it is

substantively reasonable. Id. We review the substantive reasonableness of a

sentence under a deferential abuse-of-discretion standard, examining the actual

sentence imposed in light of the record as a whole and the § 3553(a) factors.2 Id.

       2
          The United States urges us not to review any alleged error based upon the doctrine of
invited error. “The doctrine of invited error is implicated when a party induces or invites the
district court into making an error.” United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998).
“Where invited error exists, it precludes a court from invoking the plain error rule and reversing.”
United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (quotation omitted). We do not
believe that Gonzalez-Soria invited the alleged errors he challenges. The PSI, which the district

                                                 4
                                              III.

       Gonzalez-Soria contends that his sentence was procedurally unreasonable

because the district court did not consider the 18 U.S.C. § 3553(a) sentencing

factors, as evidenced by the court’s failure to explicitly reference those factors.

       Although a sentence is procedurally unreasonable if the district court fails to

consider the § 3553(a) factors, we do not require a district court to explicitly

address each factor. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Indeed, we have held that express reference to the § 3553(a) factors, although

preferable, is not strictly required when the record plainly demonstrates that the

court considered them. See United States v. Dorman, 488 F.3d 936, 944 (11th Cir.

2007). “[W]hen a judge decides simply to apply the guidelines to a particular

case, doing so will not necessarily require lengthy explanation,” especially where

the sentencing judge has listened to significant argument by the parties and has

read and adopted the factual details from the PSI. Rita v. United States, 551 U.S.

338, 356, 359 (2007); Dorman, 488 F.3d at 944.

       The government contends that, because Gonzalez-Soria failed specifically

to object to procedural reasonableness at sentencing, we should review only for


court adopted, reflects his request for a downward variance and his low-end sentence request was
accompanied by a caveat—namely, that he would “at the very least” seek the low-end of the
advisory guidelines range.

                                               5
plain error. Although several other circuits have done so, we have not yet decided

in a published opinion whether a challenge to the procedural reasonableness of a

sentence is reviewed only for plain error when the defendant did not object on that

basis before the district court. See, e.g., United States v. Freeman, 640 F.3d 180,

186 (6th Cir. 2011); United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010);

United States v. Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir. 2009). But it

is unnecessary to do so now. We perceive no error, plain or otherwise.

      Although the district court did not expressly reference § 3553(a), the record

shows that the court both adequately considered those factors and expressed the

reasons for Gonzalez-Soria’s sentence. At the outset of the sentencing hearing,

the court restated the guidelines calculations, the statutory penalty, and the

availability of sentencing options for Gonzalez-Soria’s offense. The court

demonstrated thorough familiarity with the PSI and engaged with counsel’s

arguments about the details of Gonzalez-Soria’s prior convictions. Additionally,

the court referenced Gonzalez-Soria’s son. Ultimately, however, the court was

persuaded by Gonzalez-Soria’s “unbelievable” recidivism that a within-guidelines

sentence was appropriate. In short, we can readily infer that, through its

consideration of the parties’ arguments, the PSI, and the guidelines range, the

court accounted for the § 3353(a) factors in fashioning Gonzalez-Soria’s sentence.

                                          6
Thus, the district court committed no procedural error.

      Gonzalez-Soria’s substantive reasonableness arguments, likewise, do not

require us to vacate his sentence. Although a within-guidelines sentence is not

presumptively reasonable, we expect it to be. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). We will vacate a sentence only if we “are left with the

definite and firm conviction that the district court committed a clear error of

judgment . . . .” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2009) (en

banc) (quotation omitted). Additionally, “[w]e review sentencing arguments

raised for the first time on appeal [only] for plain error.” United States v. Bonilla,

579 F.3d 1233, 1238 (11th Cir. 2009).

      Gonzalez-Soria argues that, because illegal re-entry is non-violent and none

of his multiple prior offenses resulted in intentional harm to any person, his

sentence was unreasonably long. He contends that each of the § 3353(a) factors

weighs in favor of a below-guidelines sentence. But we will “not reweigh relevant

factors nor . . . remand for re-sentencing unless the district court committed a clear

error of judgment in weighing the § 3553(a) factors by arriving at a sentence

outside the range of reasonable sentences.” United States v. Langston, 590 F.3d

1226, 1237 (11th Cir. 2009). The district court made plain that it felt the necessity

of deterring a repeat offender outweighed Gonzalez-Soria’s arguments in favor of

                                           7
a shorter sentence. That judgment was not clearly erroneous.

       As outlined above, Gonzalez-Soria told the district court he had “no

guideline issues.” But, for the first time on appeal, he now argues that U.S.S.G.

§ 2L21.2(b)(1)(B) is not based upon the Sentencing Commission’s institutional

expertise because it is not based upon empirical evidence or national experience.3

We have held, however, that the absence of empirical evidence does not

independently undercut the validity of any guideline. United States v. Snipes, 611

F.3d 855, 870 (11th Cir. 2010). More importantly, there can be no plain error

when, as here, neither this court nor the Supreme Court has addressed an issue.

United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). In the

absence of any precedent supporting Gonzalez-Soria’s argument, the district court

did not plainly err in applying U.S.S.G. § 2L1.2(b)(1)(B), and Gonzalez-Soria’s

sentence is not substantively unreasonable upon that basis.

       Accordingly, we AFFIRM the judgment of the district court.




       3
         Gonzalez-Soria’s generalized objection “to the length of the sentence” at the close of
sentencing was inadequate to preserve his specific challenge to the foundations of the
§ 2L1.2(b)(1)(B) enhancement. See United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir.
2006) (reviewing only for plain error where defendant did not specifically object to
enhancement). This is especially so because he asserted that he had “no guideline problems”
with the PSI.

                                                8
