                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            May 13, 2008
                             No. 07-14498                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 07-00151-CR-01-ODE-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MIGUEL CRUZ GONZALEZ,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 13, 2008)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
       Miguel Cruz Gonzalez, a Mexican citizen, was indicted for illegal re-entry

after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2),1 pled guilty, and

was sentenced by the district court to a prison term of 28 months, a term above the

sentence range prescribed by the Sentencing Guidelines. He now appeals his

sentence, raising one issue: whether his sentence is unreasonable.

       Gonzalez first argues that the district court violated the “one book” rule by

relying on the 1995 Sentencing Guidelines Manual instead of the 2006 Sentencing

Guidelines Manual, which does not recognize multiple prior deportations as a

ground for an upward departure. He argues next that, because the district court, in

imposing the above-sentence range sentence, (1) never referred to a “variance” or

to the Supreme Court’s holding in United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), (2) did not discuss the reasonableness of his

sentence in light of the 18 U.S.C. § 3553(a) sentencing factors, and (3) specifically

referred to an “upward departure” in the context of the Guidelines, it was clear that

the court intended his sentence to be an upward departure “under a traditional

guideline calculation.” Gonzalez contends that the court failed to follow the proper



       1
         Gonzalez had been convicted on March 2, 2004, of Tampering with a Motor Vehicle
and Possession of a Controlled Substance and sentenced to probation for a term of five years.
On August 13, 2004, he was deported to Mexico. Gonzalez was deported from the United States
to Mexico on four prior occasions (all for immigration violations), on January 4, 2001, July 18,
2002, June 27, 2003, and August 5, 2003.

                                               2
procedures for departing upwardly under U.S.S.G. § 4A1.3 because it “presumably

jumped from a Criminal History Category of III to a Criminal History Category

VI” without explaining how he compared to other defendants who fall into

criminal history category VI; thus, the court failed to conduct the required “guided

analysis” of the applicable guideline range.

      After Booker, sentencing is a two-step process that requires the district court

first to “consult the Guidelines and correctly calculate the range provided by the

Guidelines,” and then to determine a reasonable sentence after considering

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

the district court’s interpretation and application of the Guidelines de novo, and the

sentence imposed for reasonableness, United States v. Campbell, 491 F.3d 1306,

1313, 1315 (11th Cir. 2007) (internal quotations and citation omitted), which is “a

deferential abuse-of-discretion standard,” Gall v. United States, — U.S. — ,128

S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). A sentence may be procedurally

unreasonable if it results from a procedure that does not follow the requirements of

Booker, and may be substantively unreasonable, irrespective of the procedure used.

United States v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir. 2006).

      An above-guidelines sentence is a variance, and not a Guidelines departure,

where the district court: (1) correctly calculates the advisory Guidelines range; (2)



                                           3
considers the adequacy of this range in the light of the § 3553(a) factors; and (3)

concludes that the Guidelines range does not adequately address those factors. See

United States v. Irizarry, 458 F.3d 1208, 1211-12 (11th Cir. 2006), cert.

granted,128 S.Ct. 828 (2008). Where the court fails to cite to a specific

Guidelines departure provision and states that the Guidelines do not adequately

take into account the severity of the offense, the district court’s imposition of an

above-Guidelines sentence is not an upward Guidelines departure. See United

States v. Eldick, 443 F.3d 783, 788 n.2 (11th Cir. 2006) (noting that “[it was] not

reviewing the propriety of a ‘guidelines’ departure” where the district court treated

its decision to impose an above-guideline sentence as an exercise of its discretion),

cert. denied, 127 S.Ct. 251 (2006).

      In reviewing the reasonableness of a sentence, we consider the factors set

out in § 3553(a) and the district court’s reasons for imposing the particular

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

3553(a) factors 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

                                           4
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to the victims.

See 18 U.S.C. § 3553(a)(1)-(7). While the court must consider the § 3553(a)

factors, it is not required to discuss each factor. United States v. Talley, 431 F.3d

784, 786 (11th Cir. 2005). Rather, “an acknowledgment by the court that it has

considered the defendant’s arguments and the factors in section 3553(a) is

sufficient under Booker.” Id.

      The record of Gonzalez’s sentencing proceeding demonstrates that the

district court relied solely on the § 3553(a) factors to vary upward from the

prescribed sentence range, and therefore, treated its decision to impose a sentence

above that range as a variance, rather than an upward departure. Accordingly, it

did not err in failing to follow the procedural requirements for a departure under

U.S.S.G. § 4A1.3, nor did it violate the one book rule. Further, because the court

adequately considered the § 3553(a) factors, and the sentence imposed was

reasonable in light of those factors, the sentence is not the product of an abuse of

discretion.

      AFFIRMED.




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