[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 14, 2006
No. 05-11618
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00243-CR-T-17-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUCAS MEDINA SANCLEMENTE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 14, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges
PER CURIAM:
Lucas Medina Sanclemente appeals his 135-month concurrent sentences
imposed after pleading guilty to (1) aiding and abetting in the possession with
intent to distribute five kilograms or more of cocaine while on board a vessel, 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, in violation of 46 App. U.S.C. § 1903(a), (g), &
(j) and 21 U.S.C. § 960(b)(1)(B)(ii). After review, we affirm.
I. BACKGROUND
In May 2004, United States Coast Guard personnel observed a Colombian
fishing vessel, the Estrella del Sur, refuel a small “go-fast” boat and provide its
crew with food in the Pacific Ocean off Costa Rica. Upon detecting the Coast
Guard’s presence, both vessels fled, and the Coast Guard personnel observed the
crew of the go-fast boat dropping approximately thirty bales of cocaine into the
ocean. The Coast Guard recovered one of those bales, which contained 20
kilograms of cocaine. The Coast Guard also pursued the Estrella del Sur and
eventually arrested its crew, which included Sanclemente. The Costa Rican
authorities took the go-fast boat’s crew into custody. The Coast Guard and the
government estimated that the go-fast boat was transporting at least 600 kilograms
of cocaine.
Sanclemente pled guilty to both counts. The presentence investigation
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report (“PSI”) assessed a base offense level of 38 under U.S.S.G. § 2D1.1(c)(1)
based on the amount of drugs (600 kilograms of cocaine) that Sanclemente aided
and abetted in the possession and conspired to distribute. The PSI recommended a
two-level reduction under U.S.S.G. § 2D1.1(b)(7), because Sanclemente met the
safety-valve criteria set forth in U.S.S.G. § 5C1.2, and a three-level reduction for
acceptance of responsibility. Thus, with a total offense level of 33 and a criminal
history category of I, the PSI recommended a guidelines range of 135 to 168
months.
In his written objection, Sanclemente objected to the base offense level of 38
used in the PSI. Sanclemente argued that he should be held accountable for 5
kilograms rather than 600 kilograms of cocaine because the indictment specifically
provided that the amount of cocaine was five kilograms or more and he had not
stipulated to an amount in excess of five kilograms.1
At sentencing, Sanclemente adopted the argument of one of his co-
defendants, Arbelardo Cuero Arbelardo, regarding the calculation of the base
offense level based on drug quantity. Arbelardo argued that the PSI improperly
relied upon hearsay in Colombian police reports regarding the amount of drugs
1
Sanclemente also objected to not receiving a mitigating-role reduction, and was overruled.
Sanclemente does not raise this issue on appeal.
3
involved. The government responded that the PSI’s 600 kilogram amount was
determined based on the United States Coast Guard’s observation of the “go-fast”
boat discarding between 30 and 40 bales and the 20 kilogram weight of the bale the
Coast Guard was able to retrieve from the water. The district court overruled
Arboledo’s objection, noting that the 600 kilogram figure was a conservative
estimate.
The district court then adopted the factual statements in the PSI and
determined that the guidelines range was 135 to 168 months. After permitting
Sanclemente to allocute, the court imposed a 135-month sentence. The district
court noted that “after considering the advisory sentencing guidelines and all of the
factors identified in 18 U.S.C. § 3553(a) 1 through 7,” a sentence at the low end of
the guidelines range was “sufficient, but not greater than necessary to comply with
the statutory purposes of sentencing.”
II. DISCUSSION
On appeal, Sanclemente argues that at sentencing the district court failed to
address the sentencing factors in 18 U.S.C. § 3553(a) and applied the guidelines in
a mandatory manner. After the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district court is required to take into
account the advisory guidelines range and the sentencing factors set forth in §
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3553(a). See Booker, 125 S. Ct. at 764-66; United States v. Crawford, 407 F.3d
1174, 1178 (11 th Cir. 2005); United States v. Williams, ___ F.3d ___, 2006 WL
68559, at * 3 (11 th Cir. Jan. 13, 2006). Although the district court must consider §
3553(a)’s factors, “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,
1328-29 (11 th Cir. 2005). Instead, “acknowledgment by the district court that it has
considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.” United States v. Talley, 431 F.3d 784, 786 (11 th Cir.
2005).
Contrary to Sanclemente’s assertions, the district court explicitly
acknowledged that the guidelines were advisory and that a sentence at the low end
of the guidelines range was “sufficient, but not greater than necessary to comply
with the statutory purposes of sentencing.” We cannot conclude on this record that
the district court applied the guidelines in a mandatory fashion. In addition, the
district court stated that, in imposing the 135-month sentence, it had considered the
advisory guidelines range and all the factors identified in § 3553(a)(1) through (7).
Accordingly, the district court satisfied its obligations under Booker. See id.2
2
Sanclemente was sentenced at the same time and in the same hearing as several of his co-
defendants, including Arbelardo. During the hearing, the district court made certain statements in
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Sanclemente also argues that the district court erred in finding that he was
accountable for 600 kilograms of cocaine for purposes of determining his base
offense level under the Sentencing Guidelines. We review the district court's
application of the Sentencing Guidelines de novo and its findings of fact for clear
error. United States v. Grant, 397 F.3d 1330, 1332 (11th Cir. 2005). After Booker,
district courts must still correctly calculate the guidelines range when determining
a defendant’s sentence. See Crawford, 407 F.3d at 1178 (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”). If a district court applies the guidelines as
advisory, nothing in Booker prohibits it from making, under a preponderance-of-
the-evidence standard, additional factual findings that go beyond a defendant’s
admission. See United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005).
response to a request by one co-defendant to impose a sentence below the guidelines range.
Sanclemente argues that these statements demonstrate that the district court imposed the guidelines
in a mandatory manner. As this Court stated in Arboleda’s appeal, we reject this reading of the
district court’s statements:
It would have been improper for the 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 no greater than necessary to comply with the
statutory purposes of sentencing.”
United States v. Arboleda, No. 05-11502, slip op. at 4 n.2 (11th Cir. Dec. 21, 2005).
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Here, the district court did not clearly err in finding that the go-fast boat
which the Estrella del Sur refueled contained 600 kilograms of cocaine. The Coast
Guard observed the crew of the go-fast boat throw overboard between 30 and 40
bales. The bale retrieved from the water by the Coast Guard contained 20
kilograms of cocaine. As the district court noted, the government’s estimate of 600
kilograms was likely conservative. Thus, we affirm the district court’s calculation
of Sanclemente’s advisory guidelines range of 135 to 168 months.3
For all the reasons above, we affirm Sanclemente’s concurrent 135-month
sentences.4
AFFIRMED.
3
To the extent Sanclemente argues that the district court erred in relying upon the Coast
Guard’s reports because they are hearsay, this argument is without merit. See United States v.
Baker, 432 F.3d 1189, 1254-55 & 1254 n.68 (11th Cir. 2005) (reaffirming post-Booker that district
courts may rely on reliable hearsay to make sentencing determinations).
4
In his brief, Sanclemente states that he “adopts the arguments, together with their supporting
citations of authority, filed on behalf of co-Appellants providing they inure to the benefit of the
Appellant.” This statement of adoption is ineffective because it does not comply with this Court’s
Rule 28-1(f). Therefore, the only issues we address are those properly raised in Sanclemente’s brief.
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