[DO NOT PUBLISH]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, 

,

1284 (11th Cir. 1998). We also review the legality of a sentence de novo. United

States v. Moriarty, 

, 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, 

, 1163-64 (11th Cir. 2001); see also United States v. Ortiz-Delgado, 

, 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, 

, 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, 

, 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., 

, 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., 

, 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. 

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, 

, 

, 

(2005), we established a two-part process for district courts to use in

calculating sentences. United States v. McBride, 

, 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).

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, 

, 51, 

, 597, 

(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, 

, 356,

, 2468, 

(2007). However, “[t]he appropriateness

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of . . . what to say, depends upon [the] circumstances.” 

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, 

, 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. 

, 128 S.Ct. at 597. “[T]here is a

range of reasonable sentences from which the district court may choose.” United

States v. Talley, 

, 788 (11th Cir. 2005). We consider the final

sentence in its entirety in light of the § 3553(a) factors. United States v. Thomas,

, 1351 (11th Cir. 2006). The district court is “permitted to attach

great weight to one factor over others.” United States v. Shaw, 

,

1237 (11th Cir.) (quotation omitted), cert. denied, 

(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

                                          6
      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.

(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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