United States v. Juan Vargas

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 20, 2006
No. 06-10812 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-80130-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN VARGAS,

Defendant-Appellant.

________________________

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

(October 20, 2006)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
 In this appeal, we review Juan Vargas’s sentence of 12 months of

imprisonment followed by three years of supervised release. The district court

imposed the sentence pursuant to Vargas’s plea of guilty to one count of

conspiracy to transport illegal aliens for financial gain and one count of

transporting illegal aliens for financial gain. For the reasons that follow, we

AFFIRM.

I. BACKGROUND

Vargas pleaded guilty to one count of conspiracy to transport illegal aliens

for financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and (a)(1)(B)(i),

and one count of transporting illegal aliens for financial gain, in violation of 8

U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(B)(i). R2 at 5-15. Each count carried a

maximum possible sentence of ten years. See 8 U.S.C. § 1324(a)(1)(B)(i).

Following the plea hearing, a presentence investigation report (“PSI”) was

prepared. The PSI stated, among other things, that in 1989 Vargas was charged

with aggravated sexual assault of a child, and that adjudication of the charge was

deferred. Later, an Addendum to the PSI described the charges as resulting in a

felony conviction. The PSI also noted that Vargas had been charged in 1990 with

indecency with a child, but that charge had been dismissed. Vargas had the

opportunity to object to the PSI, but did not do so. R3 at 8.

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 Applying the United States Sentencing Guidelines, the district court

calculated a criminal history category of I and an offense level of 11, resulting in

an advisory sentencing range of eight to fourteen months. U.S.S.G. ch. 5, pt. A

(Nov. 2005). At sentencing, the government requested a 12-month sentence based

upon the nature of the offenses as well as Vargas’s “prior criminal history.” R3 at

2-3. Vargas requested a sentence at the low end of the Guideline range, noting that

his role in the offense was minor, he would probably be deported to Mexico after

serving his sentence, and he had been a legal resident of the United States since

1989. Id. at 4-5.

The court stated that it had considered the statements of the parties, the PSI,

the advisory Guidelines, the factors set forth in 18 U.S.C. § 3553(a), and the plea

agreement. Id. at 6. The court continued:

Despite being a criminal history category [one], the defendant is not a
first time offender. He has a prior conviction for aggravated assault
on a minor, and although dismissed, there was also a prior arrest with
respect to a child. I will impose a sentence within the advisory
guidelines, but not at the bottom of the guidelines.

Id. at 6. The court then sentenced Vargas to concurrent terms of 12 months of

imprisonment for each count, to be followed by three years of supervised release.

Id.

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 II. DISCUSSION

We review a sentence imposed by the district court for reasonableness. See

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (per curiam) (citing

United States v. Booker, 543 U.S. 220, 260-61, 125 S. Ct. 738, 765 (2005)). “We

do not apply the reasonableness standard to each individual decision made during

the sentencing process”; rather, our review is limited to the reasonableness of the

final sentence. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005)

(per curiam) (citing United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.

2005)). This reasonableness inquiry is guided by the factors set forth at 18 U.S.C.

§ 3553(a), including the applicable Guidelines range. See Winingear, 422 F.3d at

1246; Booker, 543 U.S. at 261, 125 S.Ct. at 766. After Booker, the district court is

not bound by the Guidelines, but still must consider the properly-calculated

Guidelines range in determining a reasonable sentence. See United States v. Scott,

426 F.3d 1324, 1330 (11th Cir. 2005).

In this case, the district court correctly calculated an advisory Guidelines

range of eight to fourteen months, and Vargas does not challenge that

determination. Rather, Vargas argues that his sentence of 12 months is

unreasonable in light of the § 3553(a) factors, and he discusses specific factors that

he believes warrant a sentence at the bottom of the Guidelines range. Unlike the

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district court, we do not weigh the individual factors under § 3553(a), and we do

not determine an appropriate sentence de novo. See Talley, 431 F.3d at 788. Our

role is to ensure that the sentence imposed by the district court is within the range

of reasonable sentences. See id. Because the district court properly considered the

factors set forth in § 3553(a) and arrived at a reasonable sentence, Vargas’s

argument fails.

The sentence imposed by the district court was within the correctly-

calculated Guidelines range, and was far lower than the aggregate statutory

maximum sentence available to the district court, which was ten years of

imprisonment as to each count. See 8 U.S.C. § 1324(a)(1)(B)(i). While the court

did not individually discuss each of the § 3553(a) factors, we have held that

nothing in Booker or elsewhere requires the district court to do so. See Scott, 426

F.3d at 1329. It is enough that the court acknowledge that it has considered the

defendant’s arguments and the § 3553(a) factors. Talley, 431 F.3d at 786. At

Vargas’s sentencing hearing, the court stated “I have considered the statements of

all the parties, the presentence investigation report, . . . the factors set forth in 18

U.S. Code, Section 3553(a)(1) through (7), as well as . . . the plea agreement of the

parties.” R3 at 6. This statement is sufficient evidence that the court properly

considered the parties’ arguments and the sentencing factors. See id.

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 Vargas also argues that the court erred in characterizing his 1989 arrest as

resulting in a “conviction,” and in relying on the circumstances of his prior arrests

in determining a sentence. The first addendum to the PSI characterizes the 1989

incident as a “prior felony conviction,” and describes the underlying facts of that

offense. Vargas was given the opportunity to object to the contents of the PSI, and

failed to do so. It is the law of this circuit that failure to object to the factual

allegations set forth in the PSI operates as an admission thereof. United States v.

Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). The existence of a prior conviction

is a question of fact. See United States v. Gibson, 434 F.3d 1234, 1246 (11th Cir.

2006), cert. denied, __ U.S. __, 126 S. Ct. 2911 (2006) (discussing “the fact of [the

defendant’s] prior convictions”). Because Vargas did not object to the contents of

the PSI, he effectively admitted to the conduct described in the PSI, and that the

1989 arrest resulted in a conviction. See Wade, 458 F.3d at 1277. Accordingly,

the district court did not err by referring to Vargas’s prior conviction.

Finally, Vargas contends that the court did not consider the possibility that

he will be deported to Mexico as a result of his conviction in this case. The record

shows that Vargas did ask for leniency on the ground that he could be deported as a

result of his conviction, and the court stated that it considered the parties’

arguments. As discussed above, the court’s statement that it considered his

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arguments is sufficient evidence that it in fact did so. See Talley, 431 F.3d at 786.

III. CONCLUSION

Upon a thorough review of the record on appeal, and after consideration of

the briefs of the parties on appeal, we find no reversible error. The district court

correctly calculated Vargas’s advisory Guideline range and considered the

arguments presented by the parties and the factors in 18 U.S.C. § 3553(a). The

court then sentenced him within the Guideline range to a total term substantially

lower than the ten-year statutory maximum sentence available as to each count.

Accordingly, Vargas’s sentence was reasonable, and we affirm.

AFFIRMED.

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