[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11896 FEBRUARY 21, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00562-CR-T-30-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERMAN DE ARMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 21, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
German De Armas appeals his 135-month sentence and convictions for
possession with intent to distribute 5 kilograms or more of a mixture and substance
containing a detectable amount of cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. App. § 1903(a), (g), and
21 U.S.C. § 960(b)(1)(B)(ii) (Count 1), and conspiracy to possess with intent to
distribute 5 kilograms or more of a mixture and substance containing a detectable
amount of cocaine while on board a vessel subject to the jurisdiction of the United
States, in violation of § 1903, (a), (g), (j), and § 960(b)(1)(B)(ii) (Count 2). The
135-month sentence De Armas received was the lowest possible term within the
applicable 135 to 168 months’ advisory Guidelines range.
On appeal, De Armas argues that: (1) his sentence was unreasonable in light
of the 18 U.S.C. § 3553(a) factors and the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005);1 and (2) the district court’s imposition of
sentence and retroactive application of Booker violated ex post facto and due
process principles.2 After careful review, we affirm.
1
We have already rejected the government’s argument that we do not have jurisdiction to
review the reasonableness of a sentence within the advisory Guidelines range. See United States
v. Martinez, --- F.3d ---, 2006 WL 39541 *3 (11th Cir. Jan. 9, 2006) (rejecting government’s
argument that this Court lacks jurisdiction to review sentences for reasonableness under 18 U.S.C.
§ 3742); see also United States v. Mickelson, --- F.3d ---, 2006 WL 27687 *2 (8th Cir. Jan. 6, 2006)
(same).
2
As for De Armas’s argument, raised for the first time on appeal, that the district court
lacked subject-matter jurisdiction over the instant case because the Maritime Drug Law Enforcement
2
We “review for unreasonableness” a sentence imposed post-Booker.
Booker, 543 U.S. at ___, 125 S.Ct. at 765 (quotation and alteration omitted); see
also United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (noting that
“Booker established a ‘reasonableness’ standard for the sentence finally imposed
on a defendant”). In making our reasonableness review, we consider the final
sentence, in its entirety, in light of the § 3553(a) factors. See United States v.
Winningear, 422 F.3d 1241, 1245 (11th Cir. 2005) (“We do not apply the
reasonableness standard to each individual decision made during the sentencing
process; rather, we review the final sentence for reasonableness.”). We review de
Act (“MDLEA”) represented an ultra vires exercise of Congressional power under the Piracies and
Felonies Clause of the Constitution, we discern no plain error. Cf. United States v. Williams, 121
F.3d 615, 618 (11th Cir. 1997) (reviewing challenge to constitutionality of statute, based on
assertion that Congress exceeded its authority in enacting statute, for plain error). Because there was
no precedent on point from the Supreme Court or this Court, any alleged error could not be plain.
See United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (holding that “an error cannot
meet the ‘plain’ requirement of the plain error rule unless it is ‘clear under current law.’ . . . [W]hen
neither the Supreme Court not this Court has ever resolved the issue, and other circuits are split on
it, there can be no plain error in regard to the issue.” (citations omitted)); see also United States v.
Moreno-Morillo, 334 F.3d 819, 824 (9th Cir. 2003) (holding that Congress acted within
constitutionally conferred authority in enacting MDLEA). Moreover, we have noted that “this
circuit and other circuits have not embellished the MDLEA with [the requirement of] a nexus
[between a defendant’s criminal conduct and the United States].” United States v. Rendon, 354 F.3d
1320, 1325 (11th Cir. 2003), cert. denied, 541 U.S. 1035 (2004). Simply put, the district court did
not commit plain error by failing to hold sua sponte that the MDLEA was unconstitutional because
Congress had exceeded its authority under the Piracies and Felonies Clause.
We also must reject DeArmas’s argument that the MDLEA is unconstitutional in light of
United States v. Gaudin, 515 U.S. 506 (1995). As De Armas recognizes, we expressly addressed
and rejected his position in United States v. Tinoco, 304 F.3d 1088 (11th Cir. 2002). Because “only
the Supreme Court or this Court sitting en banc can judicially overrule a prior panel decision,” we
must follow Tinoco. See United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004) (discussing
prior-precedent rule).
3
novo a defendant’s claim that his sentence violated ex post facto principles. See
United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004), cert denied, 126
S. Ct. 417 (2005).
First, De Armas argues that his sentence was unreasonable in light of the
§ 3553(a) factors and the Supreme Court’s decision in Booker.3 As for his claim
that the district court did not adequately consider all of the § 3553(a) factors, we
recently held that “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). Accordingly, a district court’s failure to express reference
each and every one of the § 3553(a) factors does not constitute error under Booker.
In any event, here, at the sentencing hearing, the district court expressly
stated that it had considered all of the factors in § 3553(a). Although the district
3
In support of this claim, De Armas highlights the presence of the following factors as
supporting a sentence below the advisory Guidelines range: (1) he has no criminal history; (2) the
sentence that he suggested, 108 months’ imprisonment, adequately would have reflected the
seriousness of the offense and provided both specific and general deterrence; (3) he played a small
role in a large conspiracy; (4) he received a significantly higher sentence than his codefendants
based solely on the fact that he was the captain of the vessel; and (5) his base offense level was the
same base offense level as that of a “‘kingpin’ of a large-scale organization,” even though he had
no equity or ownership interest in the drugs, was not earning a commission off of the sale of the
drugs, and did not have a leadership position in the larger drug organization
4
court did not detail the weight that it had accorded to each individual sentencing
factor, it was not required to do so. See Scott, 426 F.3d at 1329. On this record,
we are satisfied with the district court’s express statements that it had considered
De Armas’s codefendants’ sentences, see § 3553(a)(6), as well as the facts that De
Armas had no equity interest in the drugs, no role in the distribution of the drugs,
and no role in the planning of the conspiracy. All of these facts were raised before
the district court and plainly the court considered them. Simply put, De Armas’s
sentence was not unreasonable and is fully supported by the district court’s
sentencing considerations and factual findings. We can find no Booker error in the
district court’s consideration of the § 3553(a) factors here.
We likewise are unpersuaded by De Armas’s argument that the district court
violated ex post facto and due process principles when it sentenced him to 135
months’ imprisonment because the maximum sentence that the district court could
have imposed based solely on the facts charged in the indictment was 87 months’
imprisonment.4 De Armas recognizes that we rejected a similar argument in
4
To the extent De Armas suggests that the district court violated his Sixth Amendment
rights by enhancing his sentence based on facts that were not alleged in his indictment or admitted
by him, the district court did not err by finding facts supporting extra-verdict enhancements since
it sentenced De Armas under an advisory guidelines scheme. See United States v. Chau, 426 F.3d
1318, 1323-24 (11th Cir. 2005) (rejecting a defendant’s argument that, under an advisory guidelines
scheme, the Sixth Amendment prohibits a sentencing court from finding facts supporting extra-
verdict enhancements).
5
United States v. Duncan, 400 F.3d 1297 (11th Cir.), cert. denied, 126 S. Ct. 432
(2005). In that case, the defendant argued that retroactively applying the remedial
holding of the Booker decision -- which allows for sentence enhancements based
upon judicial fact-finding so long as the guidelines are applied in an advisory
manner -- did not give him “fair warning” of the potential sentence, and thus, acted
as an ex post facto law, in violation of his due process rights. Duncan, 400 F.3d at
1307.
In Duncan, like here, the essence of the defendant’s argument sought
retroactive application of Booker’s Sixth Amendment holding, but not its remedial
holding. Id. at 1306. We concluded Duncan had “sufficient warning” that life
imprisonment was a potential consequence to his actions to satisfy due process and
ex post facto concerns because, at the time of the offense, (1) the applicable statute
provided for a sentence of life imprisonment; (2) the Guidelines provided that a
judge would engage in fact-finding to determine sentence and could impose a
sentence of life imprisonment; and (3) although mandatory Guidelines were in
place, the law of this Circuit then recognized the United States Code as the source
of the maximum sentence, which, in Duncan’s case, was a life sentence. Id. at
1307-08.5 De Armas recognizes that our holding in Duncan is dispositive here and
5
The “fair warning” factors of Duncan also are present here. When De Armas committed
the drug offenses, (1) the maximum term of imprisonment for De Armas’ offenses was life
6
suggests that Duncan was wrongly decided. According to our well-established
prior-precedent rule, “[o]nly the Supreme Court or this Court sitting en banc can
judicially override a prior panel decision.” United States v. Wright, 392 F.3d
1269, 1280 (11th Cir. 2004) (internal quotations and citations omitted), cert.
denied, 125 S.Ct. 1751 (2005). Thus, pursuant to Duncan, we find no ex post facto
or due process violation based on application of the Booker decision.
AFFIRMED.
imprisonment, see 21 U.S.C. § 960(b)(1)(B)(ii); (2) the Guidelines informed De Armas that a judge
would engage in fact-finding to determine his sentence and could impose a sentence of up to life
imprisonment, see 18 U.S.C. § 3551, et seq. (providing that the sentencing court could consider
specified factors, including the guidelines, in imposing sentence); and (3) the relevant maximum at
the time when De Armas committed his offense was the statutory maximum enacted in the United
States Code, not the maximum established pursuant to the guidelines. See Duncan, 400 F.3d at
1308.
7