FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 27, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-16084

Non-Argument Calendar

________________________

D. C. Docket No. 06-14022-CR-DLG

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

PORFIRIO AGUIRRE-LOPEZ, 

a.k.a. Porfidio Aguilar, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 27, 2007)

Before ANDERSON, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

Porfirio Aguirre-Lopez appeals his 88-month sentence for illegal reentry by
 On February 20, 2007, the Supreme Court heard arguments to consider the following 1

questions: 

1) Was the district court's choice of within-Guidelines sentence reasonable? 2) In

making that determination, is it consistent with United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to accord a presumption of

reasonableness to within-Guidelines sentences? 3) If so, can that presumption

justify a sentence imposed without an explicit analysis by the district court of the

18 U.S.C. §3553(a) factors and any other factors that might justify a lesser

sentence?

See Rita v. United States, (U.S. Nov. 03, 2006) (No. 06-5754) (defendant appeal of 33-month

sentence). 

2

a previously deported aggravated felon, in violation of 8 U.S.C. § 1326(a). 

Specifically, Aguirre-Lopez argues that this sentence was unreasonable because the

district court erroneously presumed that a sentence within the Sentencing

Guidelines would be reasonable and gave undue weight to the Guidelines. 

Aguirre-Lopez also argues that we should hold his case until the Supreme Court

has decided Rita v. United States, (No. 06-5754).1

After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d

621 (2005), the sentencing court must not only correctly calculate the guideline

imprisonment range, but must also treat that range as advisory and impose a

reasonable sentence. United States v. Talley, 481 F.3d 784, 786 (11th Cir. 2006). 

We review a sentence for reasonableness in light of 18 U.S.C. § 3553(a). United

States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006). This statute provides that

the sentencing court shall impose a sentence “sufficient, but not greater than
3

necessary” to comply with the purposes of sentencing, namely reflecting the

seriousness of the offense, promoting respect for the law, providing just

punishment for the offense, deterring criminal conduct, protecting the public from

future criminal conduct by the defendant, and providing the defendant with needed

educational or vocational training or medical care. 18 U.S.C. § 3553(a)(2). The

statute also instructs the sentencing court to consider certain factors, including the

history and characteristics of the defendant. 18 U.S.C. § 3553(a)(1). 

We do not require the district court to discuss or to state that it has explicitly

considered each part of § 3553(a). Talley, 431 F.3d at 786. Instead, an explicit

acknowledgment that the district court has considered the defendant’s arguments

and the § 3553(a) factors will suffice. United States v. Scott, 436 F.3d 1324, 1329-

30 (11th Cir. 2005). The burden of proving that a sentence is unreasonable rests on

the sentence challenger. Talley, 431 F.3d at 788. 

Here, nothing in the record demonstrates that the district court assumed that

a sentence within the guidelines imprisonment range would be reasonable. Rather,

the district court explicitly acknowledged that it had the authority to impose any

reasonable sentence. Also, the district court expressly stated that it had considered

the arguments of both parties and the § 3553(a) factors. The district court

ultimately was influenced by Aguirre-Lopez’s criminal history, which is one of the
 Aguirre-Lopez’s request for oral argument is denied. 2

4

§ 3553(a) factors. See 18 U.S.C. § 3553(a)(1). Accordingly, because the district

court did not make any erroneous assumption and considered everything required

of it before sentencing, the sentence imposed was reasonable. See Talley, 431 F.3d

at 786; Scott, 436 F.3d 1324. Therefore, we affirm Aguirre-Lopez’s sentence.

We also note that because the district court did not presume that a sentence

within the guidelines imprisonment range was reasonable, the Supreme Court’s

decision in Rita will not affect the outcome of the instant appeal. Therefore, it is

unnecessary to hold the instant case until Rita is decided. 

AFFIRMED.2