[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 22, 2007
No. 06-14519 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00200-CR-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE RIOS-ALVINO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 22, 2007)
Before BLACK, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Felipe Rios Alvino (“Rios”) appeals his 51-month sentence for re-entering
the United States without permission after being deported, in violation of 8 U.S.C.
§ 1326(a). On appeal, Rios argues that his sentence is unreasonable because the
district court failed to consider properly the factors in 18 U.S.C. § 3553(a). After
review, we affirm.
I. BACKGROUND
Rios, a citizen of Mexico, was discovered in the United States after he was
arrested in Georgia on charges of molesting his step-daughter. Rios previously had
been deported three times, in 1996, 1997 and 2001. His 1996 deportation followed
California convictions for child molestation and possession of cocaine, which
qualified as aggravated felonies.
Following his Georgia arrest, a grand jury indicted Rios for being in the
United States without consent after having been deported. Rios pled guilty.
The presentence investigation report (“PSI”) recommended a total offense
level of 21 and a criminal history category of III, resulting in an advisory
guidelines range of 46 to 57 months’ imprisonment. Rios raised two objections to
the PSI’s calculation of his advisory guidelines range, neither of which is relevant
to this appeal.1
1
Rios objected to the inclusion of the California child molestation conviction in his criminal
history score and argued that his California child molestation and cocaine possession charges were
related and should be counted together. The district court overruled the former, but sustained the
latter, objection. On appeal, Rios does not challenge his advisory guidelines calculation.
2
After determining Rios’s advisory guidelines range, the district court asked
whether a non-guidelines sentence should be imposed. Rios responded in the
negative. Rios requested a sentence of 46 months, at the low end of the advisory
guidelines range, arguing that his prior convictions had already been taken into
account in calculating his guidelines range. Additionally, Rios noted that he had
been working steadily in the United States, owned his own business, and was the
provider for his wife and children. During allocution, Rios maintained that he was
innocent of the California molestation charge, that his step-daughter’s allegations
of child molestation were false and that the Georgia investigation had revealed no
evidence of molestation. Rios also explained that he had returned to the United
States after being deported only because his wife and children depended on him.
The district court sentenced Rios to a 51-month term of imprisonment, in the
middle of the advisory guidelines range. The district court stated that, in arriving
at this sentence, it had taken into account two aggravating factors, namely, that
Rios’s prior convictions were not fully accounted for in his criminal history and
that, despite three previous deportations, Rios was not deterred from returning to
the United States in violation of the law. The district court also stated that the
sentence was fair and reasonable, considering the § 3553(a) factors, including the
nature and circumstances of the offense, the history and characteristics of the
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defendant and the need for the sentence to reflect the seriousness of the offense and
protect the public. This appeal followed.
II. DISCUSSION
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district
court, in determining a reasonable sentence, must correctly calculate the advisory
guidelines range and then consider the factors set forth in § 3553(a). United States
v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).2 Booker does not require the district
court 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. Scott, 426 F.3d
1324, 1329 (11th Cir. 2005). Instead, a district court’s statement that it has
considered the § 3553(a) factors is sufficient in post-Booker sentences to indicate
that it considered all the factors. See id. at 1330.
We review a defendant’s ultimate sentence for reasonableness in light of the
same § 3553(a) factors. United States v. Winingear, 422 F.3d 1241, 1246 (11th
Cir. 2005). This “[r]eview for reasonableness is deferential. . . . [A]nd when the
district court imposes a sentence within the advisory Guidelines range, we
2
Among the factors that a district court should consider at sentencing are the nature and
circumstances of the offense, the history and characteristics of the defendant, the need for the
sentence to reflect the seriousness of the offense and provide just punishment, the need for adequate
deterrence and protection of the public, the need to provide the defendant with needed training or
medical care, the kinds of sentences available, the guidelines range, the pertinent policy statements
of the Sentencing Commission, the need to avoid unwarranted sentencing disparities and the need
to provide restitution. 18 U.S.C. § 3553(a)(1)-(7).
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ordinarily will expect that choice to be a reasonable one.” Talley, 431 F.3d at 788.
“[T]he party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both [the] record and the factors in section
3553(a).” Id.
After review, we conclude that Rios has not shown that his 51-month
sentence is unreasonable. The district court indicated that it had considered the
correctly calculated advisory guidelines range and the § 3553(a) factors. The
district court listened to Rios’s arguments in mitigation and for a sentence at the
low end of the guidelines range and was not required to address each argument on
the record. The district court determined that a 51-month sentence was warranted
given Rios’s repeated re-entries into the United States and his criminal history. We
cannot say that the district court’s sentence was unreasonable.
AFFIRMED.
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