[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 3, 2005
No. 05-10832 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00047-CR-SPM-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ALAN GARNER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_____________________
(October 3, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Pursuant to a plea agreement, James Alan Garner pled guilty to five counts
of mail fraud in violation of 18 U.S.C. § 1341. After the acceptance of Garner’s
guilty plea–but before his sentencing hearing–the Supreme Court decided United
States v. Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Although
the presentence investigation report set the upper end of the applicable Sentencing
Guidelines range at 41 months, the district court noted the advisory nature of the
guidelines under Booker and, over the objection of Garner’s counsel, sentenced
Garner to 60 months’ imprisonment on each count, with the sentences to run
concurrently. Garner now appeals, arguing that (1) the sentences violated his due
process rights given the mandatory nature of the Guidelines at the time of his plea,
and (2) the sentences are unreasonable under Booker.1 We affirm the sentences
imposed by the district court.
It is uncontroverted that Garner timely raised the foregoing arguments in the
district court and preserved them for appeal. Our review is therefore de novo,
though we will reverse only for harmful error. See United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005) (per curiam). Garner contends that the Due Process
Clause of the United States Constitution “limits the retroactive expansion of a
sentencing scheme that increases punishment” based on the ex post facto principle
of fair warning. See Rogers v. Tennessee, 532 U.S. 451, 457-62, 121 S. Ct. 1693,
1
Although the district court also ordered Garner to pay restitution and imposed certain
other penalties, only Garner’s term of imprisonment is at issue on appeal.
2
149 L. Ed. 2d 697 (2001) (explaining that although Ex Post Facto Clause does not
itself apply to courts, due process forbids judicial infringement of the right to “fair
warning” that criminal conduct will give rise to certain penalties); United States v.
Duncan, 400 F.3d 1297, 1306-07 (11th Cir. 2005) (recognizing that Due Process
Clause “encompasses the ex post facto principle of fair warning”), petition for cert.
filed (July 20, 2005) (No. 05-5467) . Given the mandatory nature of the Guidelines
at the time of his plea, Garner contends, there was no fair warning that the district
court could sentence him to more than 41 months, other than on a basis for upward
departure under the Guidelines themselves. Although we previously rejected a fair
warning claim in Duncan, Garner argues that Duncan is distinguishable because
the life sentence imposed in that case was not merely identified by the applicable
statute, but indicated by the Guidelines themselves. See Duncan, 400 F.3d at 1307
(explaining that at the time Duncan committed his offense, both the United States
Code and the Guidelines informed him that he was subject to a sentence of life
imprisonment).
Garner’s attempt to distinguish Duncan is unpersuasive: under Duncan, the
statutory maximum in effect at the time of Garner’s criminal conduct provided him
with sufficient fair warning for purposes of due process. See id. at 1308
(“Although mandatory Guidelines were in place, the law of this Circuit then
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recognized the U.S. Code as the source of the maximum sentence.”); United States
v. Dupas, 419 F.3d 916 (9th Cir. 2005) (“Like the defendant in Duncan, Defendant
had fair notice, when he committed his crime and entered his plea, that his sentence
could be based on a judicial determination of the amount of intended loss and set
within the applicable statutory maximum.”). Furthermore, the district court
indicated at sentencing that even if it had sustained Garner’s sentencing objections
and the Guidelines were mandatory, the court would have departed upward to
impose the same sentence, because Garner’s actions would constitute an abuse of
trust warranting a Guidelines increase. Garner offers no explanation as to why
such conduct could not have constituted the requisite “aggravating factor . . . that
places the case outside of the Guidelines’ heartland.” United States v. Amedeo,
370 F.3d 1305, 1313 (11th Cir. 2004).2
Garner also argues that his 60-month sentences are unreasonable because
the instant case did not, in his view, involve vulnerable victims, violence or the
security of a financial institution or market, and because he accepted responsibility
2
Nor was Garner’s plea agreement breached, as he suggests, by the imposition of the 60-
month sentence. Although the agreement stated that the district court’s sentencing discretion
was “restricted” by the Sentencing Guidelines, the agreement did not purport to define the scope
of that restriction, and courts are still required, post-Booker, to consider the Guidelines in
sentencing. See Booker, 543 U.S. at __, 125 S. Ct. at 757. Moreover, the plea agreement
warned that any prediction of a sentence which might be imposed was not a guarantee or binding
promise, and acknowledged that the district court would make the “final determinations” as to
“any issue under the Sentencing Guidelines.”
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for his conduct, expressed remorse, and cooperated with pretrial supervision. In
determining, post-Booker, whether a sentence is unreasonable, we are guided by
the factors outlined in 18 U.S.C. § 3553(a). See United States v. Winingear, 11th
Cir. 2005, __ F.3d __, (No. 05-11198, Aug. 30, 2005) (per curiam). However, we
do not expect a district court always “to conduct an accounting of every § 3553(a)
factor . . . and expound upon how each factor played a role in its sentencing
decision.” United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (per
curiam). The district court in the instant case considered the applicable Guidelines
range and expressly stated that it had reviewed and considered fully the factors set
forth in § 3553(a). When imposing sentence the court noted, among other things,
that Garner’s offenses involved a significant amount of money, extensive planning,
and prolonged criminal activity over a two-year period–including appropriation of
various notary seals and the alteration and forgery of a number of deeds. Such
conduct, the court found, demonstrated a high degree of contempt for the law in
light of Garner’s education and experience. Upon review of the record and the
factors set forth in § 3553(a), we are satisfied that Garner’s 60-month concurrent
sentences on five offenses–a mere fraction of the 20-year statutory maximum
applicable to each–are not unreasonable.
AFFIRMED.
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