[DO NOT PUBLISH]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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