[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
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December 21, 2005
THOMAS K. KAHN
No. 05-11502 CLERK
Non-Argument Calendar
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D. C. Docket No. 04-00243-CR-T-17-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABELARDO CUERO ARBOLEDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 21, 2005)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Defendant Abelardo Cuero Arboleda appeals his 135-
month sentence for: (1) aiding and abetting the possession with intent to distribute
five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction
of the United States, in violation of 46 App. U.S.C. §§ 1903(a),(g), and 21 U.S.C.
§ 960(b)(1)(B)(ii); and (2) conspiracy to possess with intent to distribute five
kilograms or more of cocaine while on board a vessel subject to the jurisdiction of
the United States, in violation of 46 App. U.S.C. §§ 1903(a), (g), and (j), and 21
U.S.C. § 960(b)(1)(B)(ii). After review, we affirm.
I. FACTUAL BACKGROUND
On May 15, 2004, the United States Coast Guard observed a Columbian
fishing vessel, the Estrella del Sur, pull up along side a “go-fast” boat near Costa
Rica to supply it with fuel and food. Upon seeing the Coast Guard, both the go-
fast boat and the Estrella del Sur fled. As the boats fled, the Coast Guard observed
the “go-fast” crew drop approximately 30 bales of cocaine into the ocean.1 After
the Coast Guard apprehended the Estrella del Sur, the 8-man crew, including
Defendant Arboleda, were arrested.
At sentencing the district court concluded, over the defendant’s objection,
that the defendant was responsible for at least 150 kilograms of cocaine. With a
1
The Coast Guard recovered one of the bales of cocaine and determined that it contained
approximately 20 kilograms of cocaine.
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criminal history category I and an adjusted offense level of 33, the applicable
guidelines range was 135-168 months’ imprisonment. After explicitly stating that
the guidelines were advisory under United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005), the district court sentenced Arboleda to 135 months’
imprisonment, stating that “the sentence imposed is sufficient, but not greater than
necessary to comply with the statutory purposes of sentencing.”
II. DISCUSSION
After Booker, and even under an advisory guidelines scheme, district courts
must still correctly calculate the guidelines range when determining a defendant’s
sentence. See United States v. Crawford, 407 F.3d 1174, 1178 (11 th Cir. 2005)
(stating that, after Booker, district courts must consult the Guidelines and “[t]his
consultation requirement, at a minimum, obliges the district court to calculate
correctly the sentencing range prescribed by the Guidelines”). Defendant
Arboleda’s challenge to the district court’s factual finding that he was responsible
for at least 150 kilograms of cocaine is without merit. The Coast Guard observed
the crew of the go-fast boat dumping approximately 30 bales of cocaine into the
ocean. The Coast Guard recovered one of these bales and determined that it
contained 20 kilograms of cocaine. As the district court determined, the
government was likely “conservative in their estimate of how much cocaine was
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involved here.” Thus, we affirm the district court’s calculation of Defendant’s
guidelines range as 135-168 months’ imprisonment.
The defendant also argues that the district court erred by treating the
guidelines range as mandatory even after Booker.2 However, as noted above, the
district court explicitly stated that the guidelines were advisory under Booker.
Furthermore, in sentencing Arboleda to 135 months’ imprisonment, the district
court stated that “the sentence imposed is sufficient, but not greater than necessary
to comply with the statutory purposes of sentencing.” Given the record in this
case, we cannot conclude that the district court applied the guidelines in a
mandatory fashion. Consequently, we affirm Arboleda’s 135-month sentence.
AFFIRMED.
2
During the sentencing hearing, the district court stated that
there remains great confusion about all of this [Booker changes to the Sentencing
Guidelines]. I am waiting for the people who have the power to finally make up
their minds what are we doing. I was around in 1984 when all of this started with
the minium mandatories and then the guidelines in ‘86. I just work here.
I am just trying to follow whatever it is people at higher pay grades are telling
me to do. And I don’t think we need to add to the confusion. I say that respectfully
to all my brothers and sisters that are going off in other different directions here. But
we are going to have enough cases coming back now, and we do need to have
stability and predictability, so that lawyers can advise their clients.
We don’t need guessmanship. So I understand your argument. Please
understand what I am trying to do.
It would have been improper for a district court to adopt a post-Booker rule that, in order to establish
predictability and stability, sentences would still be within the guidelines range in its particular
courtroom. Although the district court’s statements arguably provide some support for defendant’s
contentions, we do not read the district court’s statements in this case as creating any such per se
rule. Rather, the district court expressly acknowledged that the guidelines were advisory and that
“the sentence imposed is sufficient, but not greater than necessary to comply with the statutory
purposes of sentencing.”
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