[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 28, 2005
No. 05-13035 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00059-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK RICHARD TYNES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 28, 2005)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
After a jury trial, Mark Richard Tynes appeals his 324-month sentence for
conspiring to possess with intent to distribute 100 kilograms or more but less than
1000 kilograms of a mixture or substance containing marijuana, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) and 846 (Count I), and his 120-month sentence
for possession with intent to distribute less than 50 kilograms of a mixture or
substance containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) &
(b)(1)(D). After review, we affirm.
On appeal, Tynes argues that, even under an advisory guidelines system, his
sentence: (1) violates the statutory maximum as defined by Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); (2) violates United States v. Booker,
543 U.S. 220, 125 S. Ct. 738 (2005), because the district court determined drug
quantity based on facts neither admitted by him nor proven beyond a reasonable
doubt; and (3) was unreasonable.
I. STATUTORY MAXIMUM
Tynes argues that his sentence violates Apprendi because the district court
impermissibly held him accountable for 1,360 kilograms of marijuana.
Specifically, Tynes asserts that because (1) he did not admit to the 1,360
kilograms, and (2) the jury specifically found him guilty of distributing less than
1,000 kilograms of cocaine, the statutory maximum for Apprendi purposes is
limited to a drug quantity of less than 1,000 kilograms.
2
Tynes was originally charged with conspiring to possess with intent to
distribute 1000 kilograms or more of a mixture or substance containing marijuana,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) and 846 (Count I). Although
the jury returned a guilty verdict as to Count I, the district court submitted a special
verdict that directed the jury to “determine the amount of marijuana involved in the
conspiracy.” The jury selected “less than one thousand (1,000) kilograms but one
hundred (100) kilograms or more of . . . marijuana.” Thus, under Apprendi, the
statutory maximum is limited to the maximum for an amount less than 1,000
kilograms of marijuana.
Based on the drug quantity found by the jury (less than 1,000 kilograms but
more than 100 kilograms of marijuana), Tynes’s statutory maximum would have
been 40 years. See 21 U.S.C. 841(b)(1)(B). However, because Tynes has a prior
criminal conviction for a felony drug offense, his statutory maximum became life.
See id.1 Because Tynes’s statutory maximum was life, his 324-month sentence did
not violate Apprendi.
II. BOOKER
1
“In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), the
Supreme Court held that the government need not allege in its indictment and need not prove
beyond a reasonable doubt that a defendant had prior convictions for a district court to use those
convictions for purposes of enhancing a sentence.” United States v. Marseille, 377 F.3d 1249,
1257 (11th Cir.), cert. denied, 125 S. Ct. 637 (2004). Neither Apprendi, Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004), nor Booker disturbed the Almendarez-Torres holding.
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir. 2005).
3
Tynes also argues that his sentence violates Booker because the district court
determined drug quantity based on facts neither admitted by him nor proven
beyond a reasonable doubt. This argument is foreclosed by Tynes’s first appeal.2
In any event, this Court has repeatedly stated that after Booker a district
court may continue to determine drug quantity, or any other enhancement under an
advisory guidelines system, based on a preponderance of the evidence. See United
States v. Rodriguez, 398 F.3d 1291, 1297 (11 th Cir. 2005). In fact, a district court
may even continue to consider relevant acquitted conduct when applying the
guidelines in an advisory manner. See United States v. Duncan, 400 F.3d 1297,
1304-05 (11 th Cir. 2005). Consequently, Tynes’s Booker argument is without
merit.
III. REASONABLENESS
Finally, Tynes argues that his sentences were unreasonable because his co-
defendants received lower sentences. However, Tynes acknowledges that his
“prior criminal history likely resulted in a stiffer penalty.”
2
This is Tynes’s second appeal before this Court. In his first appeal, this Court
determined that there was sufficient evidence to support the application of various enhancements
and that the defendant’s sentence did not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). See United
States v. Tynes, No. 12105 (11th Cir. Dec. 27, 2004). Shortly thereafter, the Supreme Court
decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Based on Booker, this
Court granted Tynes’s motion for reconsideration and vacated his sentence. See United States v.
Tynes, No. 12105 (11th Cir. Mar. 10, 2005). However, this Court affirmed the district court’s
guidelines calculations, including drug quantity. Id.
4
In imposing Tynes’s sentences, the district court stated:
I do find this sentence meets the general goals of punishment and
hopefully will act as a deterrence [sic] to others who might consider
similar criminal conduct. And upon review of all of the factors
properly considered under Title 18, United States Code, Section 3553-
[a], taking into account the advisory nature of the sentencing
guidelines, I do conclude that this sentence, which is within the
guideline range but at the low end, is reasonable. This sentence is
sufficient and a greater sentence is not necessary to comply with the
statutory and defined purposes of sentencing.
Given Tynes’s criminal history and the district court’s consideration of the
§ 3553(a) factors, we conclude that his sentence was not unreasonable. See United
States v. Scott, 426 F.3d 1324, 1330 (11 th Cir. 2005); United States v. Winingear,
422 F.3d 1241, 1246 (11 th Cir. 2005).
For all the above reasons, we affirm Tynes’s concurrent 324-month and 120-
month sentences.
AFFIRMED.
5