[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13534 JANUARY 12, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-20807-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REINALDO GILART,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 12, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Reinaldo Gilart appeals his sentence of 210 months of imprisonment for
conspiracy to possess with intent to distribute cocaine. See 21 U.S.C. § 846.
Gilart raises four arguments: because two are squarely foreclosed by precedent of
this Court, and the other two also fail, we affirm.
I. BACKGROUND
Gilart and two other men, one of whom was an undercover police officer,
conspired to steal between 20 and 30 kilograms of cocaine from an alleged safe
house. When Gilart and the other man met with the undercover police officer to
commit the crime, police officers arrested Gilart and his co-conspirator and found a
loaded pistol on the person of Gilart’s co-conspirator. After a trial, the jury found
Gilart guilty of conspiracy to possess with intent to distribute five kilograms or
more of cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, but not guilty of
conspiracy to use, carry, and possess a firearm during and relation to a crime of
violence and a drug trafficking crime, see 18 U.S.C. § 924(o), and not guilty of
attempt to possess with intent to distribute five kilograms or more of cocaine, see
21 U.S.C. §§ 841(b)(1)(A), 846; 18 U.S.C. § 2. The jury was unable to reach a
verdict on the charge of robbery, see 18 U.S.C. § 1951(a), and returned a special
verdict that found Gilart’s offense involved less than five kilograms of cocaine.
The district court sentenced Gilart to 210 months of imprisonment and three
years of supervised release for the offense of conspiracy to possess with intent to
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distribute five kilograms or more of cocaine, but after Gilart appealed that
sentence, we remanded for resentencing in the light of United States v. Booker,
543 U.S. __, 125 S. Ct. 738 (2005). At resentencing, Gilart made the following
three arguments: (1) the enhancements for possessing a firearm and for drug
quantity were improper because the enhancements were based on conduct for
which he had been acquitted by the jury and the jury had returned a special verdict
finding that his offense involved less than five kilograms of cocaine; (2) a sentence
enhanced on the basis of acquitted conduct and contrary to the special verdict
would be unreasonable; and (3) applying the Booker remedy of an advisory
guidelines scheme to sentence him based on facts that were neither proved to a jury
nor admitted by him violated his rights under the Ex Post Facto and Due Process
Clauses of the U.S. Constitution.
The district court rejected Gilart’s arguments. The district court reasoned
that the enhancement for drug quantity was proper because the conviction for
conspiracy to possess cocaine was for 20 to 30 kilos and “that’s what was talked
about.” The district court stated that it found Gilart’s criminal background
“abysmal” and was especially concerned with his history of armed home invasions.
After stating it had considered the advisory guidelines computations in the
Presentencing Investigative Report, the statements of the parties, and the statutory
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factors, see 18 U.S.C. 3553(a)(1)-(7), the district court imposed an amended
sentence of 210 months of imprisonment and three years of supervised release.
II. STANDARD OF REVIEW
We review de novo a claim of constitutional sentencing error but will
reverse only for harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th
Cir. 2005). We review de novo the application by the district court of the
Sentencing Guidelines, and findings of fact for clear error, United States v.
Trujillo, 146 F.3d 838, 847 (11th Cir. 1998); Booker does not change this standard
of review, United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). We
review for reasonableness a sentence imposed by the district court under the
advisory guidelines. Crawford, 407 F.3d at 1178. “We review a district court’s
determination of the quantity of drugs used to establish a base offense level for
sentencing purposes under the clearly erroneous standard,” United States v.
Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000), and “cannot find clear error unless
‘we are left with a definite and firm conviction that a mistake has been
committed.’” Crawford, 407 F.3d at 1177 (quoting Glassroth v. Moore, 335 F.3d
1282, 1292 (11th Cir. 2003)).
III. DISCUSSION
Gilart now appeals his sentence, and he makes four unsuccessful arguments.
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We discuss each in turn.
A. It Was Not Error to Apply the Guidelines as Advisory.
Gilart argues that, because he committed his crime after Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), but before Booker, 543 U.S.
—, 125 S. Ct. 738, the district court violated Gilart’s rights under the ex post facto
principle of fair warning in the Due Process Clause when it sentenced him based
on post-verdict findings of fact and retroactively applied the sentencing guidelines
as advisory. Gilart concedes that we have rejected this argument. See United
States v. Duncan, 400 F.3d 1297 (11th Cir. 2005). Because “only the Supreme
Court or this Court sitting en banc can judicially overrule a prior panel decision,”
United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004), this argument fails.
B. It Was Not Error to Enhance Gilart’s Sentence Based on Acquitted Conduct.
Gilart also argues that, if it was not error to apply the Sentencing Guidelines
as advisory, that it was error under the advisory guidelines to enhance his sentence
based on acquitted conduct and conduct that contradicted the special jury verdict.
Again, Duncan controls this issue: “Booker does not suggest that the consideration
of acquitted conduct violates the Sixth Amendment as long as the judge does not
impose a sentence that exceeds what is authorized by the jury verdict.” 400 F.3d at
1304. The only requirement is that the government “proves the acquitted conduct
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relied upon by a preponderance of the evidence.” Id. (quoting United States v.
Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997)). Because the district court found
by a preponderance of the evidence that the quantity of drugs was 20 to 30
kilograms and Gilart possessed a gun during execution of the crime, Gilart’s
argument fails.
C. The District Court Did Not Improperly Calculate Drug Quantity.
Gilart argues that, even if it was not error to enhance his sentence based on
acquitted conduct, the finding of the district court as to drug quantity was not
supported by a preponderance of the evidence. He argues that the evidence does
not prove by a preponderance of the evidence either that his primary focus was to
steal money rather than drugs or that he intended to conspire to steal 20 to 30
kilograms of cocaine. We disagree. First, if the jury believed Gilart meant to steal
money rather than drugs, then it would not have convicted Gilart of conspiracy to
possess cocaine. Second, it was not clear error for the district court to find that the
amount of cocaine was 20 to 30 kilograms because that is the amount that was
discussed during the conspiracy.
D. Gilart’s Sentence Was Reasonable.
Gilart complains that his sentence was unreasonable because the district
court enhanced the sentence based on acquitted conduct, did not account for the
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special jury verdict, did not account for mitigating personal characteristics, and did
not consider the factors in section 3553(a)(1)-(7) as required by Booker. See 18
U.S.C. § 3553; Booker, 543 U.S. at __, 125 S. Ct. at 764-65. We disagree. The
district court accounted for the special jury verdict by finding that the jury was
confused as to the amount of drugs it could attribute to Gilart as there were no
actual drugs. The district court also stated that it had considered “the factors set
forth in [section 3553(a)(1)-(7)].” Although “nothing in Booker or elsewhere
requires the district court to state on the record that it has explicitly considered
each of the § 3553(a) factors or to discuss each of the § 3553(a) factors,” United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005), the district court specifically
considered Gilart’s criminal history and characterized it as “abysmal” and
“horrible.” The district court also considered “the presentence report which
contains the advisory guidelines.” The sentencing guideline range for Gilart’s
offense, as calculated in the PSI, was 235 to 293 months, or 235 to 240 months
because of the statutory maximum. The district court imposed a sentence of 210
months of imprisonment. We cannot say that Gilart’s sentence is unreasonable.
IV. CONCLUSION
We affirm Gilart’s sentence.
AFFIRMED.
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