                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-11838                 OCT 28, 2010
                                   Non-Argument Calendar             JOHN LEY
                                                                       CLERK
                                 ________________________

                           D.C. Docket No. 4:09-cr-10030-KMM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                            versus

TOMAS MORALES,

lllllllllllllllllllll                                             Defendant-Appellant.

                                ________________________

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

                                      (October 28, 2010)

Before TJOFLAT, BARKETT and FAY, Circuit Judges.

PER CURIAM:

         Tomas Morales pled guilty to conspiracy to encourage and induce an alien

to come to, enter, and reside in the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I), and the district court sentenced him to prison for 60 months.

He appeals his sentence, contending that it is both procedurally and substantively

unreasonable. It is procedurally unreasonable, he says, because his criminal

history was fully taken into account by the Guidelines sentencing range, and the

court improperly relied on the history in imposing a sentence above such range.

(Id.).1 It is substantively unreasonable given his individual circumstances.

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

deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41,

128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). In reviewing the reasonableness of a

sentence, we conduct a two-step review, first ensuring that the sentence was

procedurally reasonable, meaning the district court properly calculated the

Guidelines sentencing range, treated the Guidelines as advisory, considered the 18

U.S.C. § 3553(a) factors, did not select a sentence based on clearly erroneous

facts, and adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128

S.Ct. at 597.




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           Morales also contends that if his sentence was imposed as a departure from the
sentencing range, it constituted a departure and was done without advance notice. Since the
district court focused entirely on the factors contained in 28 U.S.C. § 3553(a) in imposing
sentence, its deviation from the sentencing range was a variance rather than a departure. See
United States v. Eldick, 443 F.3d 783, 788 n.2 (11th Cir. 2006).

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      In imposing a sentence, the court must state its reasons for choosing it. 18

U.S.C. § 3553(c). However, the court is not required to “state on the record that it

has explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors.” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

Rather, the court’s acknowledgment that it has considered the § 3553(a) factors

together with the parties’ arguments is sufficient. See id.

      Once we determine that a sentence is procedurally sound, we examine

whether the sentence is substantively reasonable in light of the record and the

§ 3553(a) factors. Gall, 552 U.S. at 51, 56, 128 S.Ct. at 597, 600. The court is

required to impose a sentence that is “sufficient, but not greater than necessary to

comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including the need to

reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, protect the public from the

defendant’s future criminal conduct, and provide the defendant with needed

educational or vocational training or medical care. See 18 U.S.C. § 3553(a)(2).

The court must also consider the nature and circumstances of the offense, the

history and characteristics of the defendant, the kinds of sentences available, the

applicable guideline range, the pertinent policy statements of the Sentencing




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Commission, the need to avoid unwarranted sentencing disparities, and the need to

provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

      In determining whether a sentence is substantively reasonable, the district

court may consider facts that have already been taken into account in calculating

the sentencing range. See United States v. Williams, 526 F.3d 1312, 1323-24

(11th Cir. 2008) (district court could consider defendant’s prior offenses in

deciding to impose an upward variance, even though those offenses were already

included in the defendant’s criminal history score); see also 18 U.S.C. § 3661

(“No limitation shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which a court of the

United States may receive and consider for the purpose of imposing an appropriate

sentence”). We have previously affirmed upward variances that were based in part

on the defendant’s prior criminal history. See, e.g., United States v. Shaw, 560

F.3d 1230, 1239-41 (11th Cir. 2009) (affirming 83-month upward variance in a

case where the defendant had 26 prior arrests).

      In light of these principles, we conclude that Morales’s 60-months’ sentence

is reasonable both procedurally and substantively. The district court correctly

calculated the sentencing range, and then exercised its authority to deviate from




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that range based on the § 3553(a) factors. The court properly considered the

§ 3553(a) factors and the weight that should be given them.

      AFFIRMED.




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