[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11311 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 28, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00243-JOF-CCH-1
UNITED STATES OF AMERICA,
ll lllllllllllllllllllPlaintiff - Appellee,
versus
FELIPE SANTIAGO-SANCHEZ,
lllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 28, 2010)
Before TJOFLAT, BARKETT, and MARCUS, Circuit Judges.
PER CURIAM:
Felipe Santiago-Sanchez (“Santiago”) pled guilty to illegal reentry into the
United States after deportation, in violation of 8 U.S.C. § 1326(a), and the district
court sentenced him to prison for 45 months under 8 U.S.C. § 1326(b)(2). He now
appeals his sentence, contending that the district court erred in finding that the
sexual offenses he committed in 1994, as to which adjudication was withheld,
were convictions sufficient to serve as a predicate for a 16-level enhancement of
his base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii), and constituted
“aggravated felonies” so as to trigger a 20-year statutory maximum sentence under
§ 1326(b)(2). He also contends that his sentence is procedurally and substantively
unreasonable.
1. Prior sexual offenses
We review a district court’s interpretation of the Guidelines and any
relevant criminal statutes de novo. United States v. Lazo-Ortiz, 136 F.3d 1282,
1284 (11th Cir. 1998). We also review the legality of a sentence de novo. United
States v. Moriarty, 429 F.3d 1012, 1023 (11th Cir. 2005).
Section § 1326, forbids an alien who once was deported from returning to
the United States without special permission, and it authorizes a maximum prison
term of two years. 8 U.S.C. § 1326(a). However, if an alien was convicted of an
“aggravated felony” prior to the initial deportation, § 1326(b)(2) authorizes a 20-
year maximum sentence. 8 U.S.C. § 1326(b)(2). The statute defines an
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“aggravated felony,” among other things, as including the “murder, rape, or sexual
abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). “[S]exual abuse of a minor” means
a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a
purpose associated with sexual gratification. United States v. Padilla-Reyes, 247
F.3d 1158, 1163-64 (11th Cir. 2001); see also United States v. Ortiz-Delgado, 451
F.3d 752, 756 (11th Cir. 2006) (under the Guidelines, California conviction for
committing lewd act on a child under the age of 14 is a crime of violence because
it constitutes sexual abuse of a minor); United States v. Marin-Navarette, 244 F.3d
1284, 1286 (11th Cir. 2001) (attempted child molestation in the third degree
constitutes sexual abuse of a minor). As amended on September 1, 1987, the
Texas Penal Code defined aggravated sexual assault to include the intentional
penetration, by any means, of the female sexual organ of a child less than 14 years
old. Tex. Penal Code Ann. § 22.021 (1987). Along the same time frame, the
Penal Code also defined indecency with a child to include intentional sexual
contact with a child under the age of 17 who is not the spouse of the accused, with
the intent to arouse or gratify the sexual desire of any person, which included the
touching of the child’s breast. Moreno v. State, 823 S.W.2d 366, 367 (Tex. App.
1991) (citing Tex. Penal Code Ann. § 21.11(a)(1) (1989)).
Next, 8 U.S.C. § 1101(a)(48)(A) defines a conviction, where adjudication of
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guilt has been withheld, as requiring the following two elements: (1) a judge or
jury has to find the alien guilty, or the alien has to plead guilty or admit sufficient
facts to warrant a finding of guilt, and (2) the judge has to order “some form of
punishment, penalty, or restraint on the alien’s liberty to be imposed.” 8 U.S.C.
§ 1101(a)(48)(A). A formal adjudication of guilt is not required. Ali v. U.S. Att’y
Gen., 443 F.3d 804, 809-10 (11th Cir. 2006). Further, even a probationary term is
sufficient to fall within the second prong of the statutory test. Resendiz-Alcaraz v.
U.S. Att’y Gen., 383 F.3d 1262, 1268 (11th Cir. 2004).
The Guideline for a § 1326 conviction, U.S.S.G. § 2L1.2, provides a base
offense level of 8, with a 16-level enhancement if the defendant previously was
deported after a conviction for a felony that qualifies as a “crime of violence.”
U.S.S.G. § 2L1.2(a), (b)(1)(A)(ii). The commentary section defines a “crime of
violence” as including the sexual abuse of a minor. Id. § 2L1.2, comment.
(n.1(B)(iii)).
We conclude that the district court did not err in making the 16-level
enhancement under § 2L1.2(b)(1)(A)(ii) and in determining that Santiago was
subject to the maximum of 20 years’ imprisonment established by 8 U.S.C. §
1326(b)(2), because his 1994 offenses constitute both actual convictions and
aggravated felonies.
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2. Reasonableness of sentence
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), we established a two-part process for district courts to use in
calculating sentences. United States v. McBride, 511 F.3d 1293, 1297 (11th Cir.
2007). First, the district court must consult and correctly calculate the sentencing
range recommended by the Guidelines. Second, the district court must fashion a
reasonable sentence by considering the factors enumerated in 18 U.S.C. § 3553(a).
Id.
When reviewing for procedural reasonableness, we ensure that the district
court (1) properly calculated the Guidelines range, (2) treated the Guidelines as
advisory, (3) considered the § 3553(a) factors, (4) did not select a sentence based
on clearly erroneous facts, and (5) adequately explained the chosen sentence. Gall
v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
Moreover, 18 U.S.C. § 3553(c) requires the district court to state its reasons for
the sentence in open court. 18 U.S.C. § 3553(c)(1). In complying with § 3553(c),
“[t]he sentencing judge should set forth enough to satisfy the appellate court that
he has considered the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356,
127 S. Ct. 2456, 2468, 168 L. Ed.2d 203 (2007). However, “[t]he appropriateness
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of . . . what to say, depends upon [the] circumstances.” Id. Furthermore, Booker
does not require the district court to discuss each of the § 3553(a) factors or
mention on record that it has explicitly considered each factor. United States v.
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
After we determine that the district court’s sentencing decision is
procedurally sound, we then review the substantive reasonableness of the sentence
for an abuse of discretion. Gall, 552 U.S. at 51, 128 S.Ct. at 597. “[T]here is a
range of reasonable sentences from which the district court may choose.” United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We consider the final
sentence in its entirety in light of the § 3553(a) factors. United States v. Thomas,
446 F.3d 1348, 1351 (11th Cir. 2006). The district court is “permitted to attach
great weight to one factor over others.” United States v. Shaw, 560 F.3d 1230,
1237 (11th Cir.) (quotation omitted), cert. denied, 129 S.Ct. 2847 (2009). In
arriving at a reasonable sentence, the district court shall impose a sentence that is
“sufficient, but not greater than necessary,” to comply with 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
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training, medical care, or other correctional treatment in the most
effective manner.
18 U.S.C. § 3553(a)(2). Other factors that the sentencing court should consider
are the following: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the kinds of sentences available; (3) the
Sentencing Guidelines range; (4) pertinent policy statements of the Sentencing
Commission; (5) the need to avoid unwanted sentencing disparities among
similarly situated defendants; and (6) the need to provide restitution to victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).
Having reviewed the record, we conclude that the district court did not
abuse its discretion in imposing the sentence at issue: the sentence was
procedurally and substantively reasonable.
AFFIRMED.
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