[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 10, 2006
Nos. 05-11296 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00016-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS L. GARCIA,
a.k.a. Alberto Reyneros,
a.k.a. Chuy,
Defendant-Appellant.
________________________
No. 05-11298
Non-Argument Calendar
________________________
D. C. Docket No. 04-00016-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL GARCIA,
a.k.a. Jesus Bueno,
Defendant-Appellant.
________________________
No. 05-11299
Non-Argument Calendar
________________________
D. C. Docket No. 04-00016-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO GARCIA,
a.k.a. Limon,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(March 10, 2006)
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Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:
In this consolidated appeal, three brothers, Jesus, Miguel and Ernesto Garcia
(the “Garcias”), appeal their sentences for conspiracy to possess with intent to
distribute and to distribute 5 kilograms or more of cocaine and 1,000 kilograms or
more of marijuana, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1),
(b)(1)(A)(ii)(II), (b)(1)(A)(vii). The Garcias engaged in a drug conspiracy to
transport cocaine and marijuana from the Texas/Mexico border to southwest
Florida, where they organized its distribution. Miguel and Ernesto organized the
distribution of the cocaine and marijuana to their brother Jesus. Jesus acted as the
wholesale distributer in the Fort Myers, Florida area, delivering drugs, picking up
payments for prior deliveries and conducting counter-surveillance. All three
brothers pled guilty. On February 10, 2005, the district court sentenced the
Garcias under an advisory guidelines system. The district court sentenced Jesus
Garcia to a 262-month sentence and Ernesto and Miguel Garcia to 328-month
sentences. After review, we affirm.
A. Extra-verdict Enhancements
On appeal, the Garcias argue that the district court violated their Sixth
Amendment rights under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
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(2005), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), when it
enhanced their sentences based on facts that were neither admitted by them nor
proven to a jury beyond a reasonable doubt.1 We have repeatedly rejected this
argument.
In United States v. Chau, 426 F.3d 1318 (11 th Cir. 2005), we held that, when
the district court applies the guidelines in an advisory manner, it does not violate a
defendant’s Sixth Amendment right under Booker by applying extra-verdict
enhancements. Chau, 426 F.3d at 1323-24; see also United States v. Rodriguez,
398 F.3d 1291, 1301 (11 th Cir.) (explaining that Booker error “is not that there
were extra-verdict enhancements – enhancements based on facts found by the
judge that were not admitted by the defendant or establish by the jury verdict – that
led to an increase in the defendant’s sentence. The error is that there were extra-
verdict enhancements used in a mandatory guidelines system”), cert. denied, 125 S.
Ct. 2935 (2005).
The sentencing proceedings in this case began three weeks after Booker was
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Specifically, the Garcias object to the following findings by the district court: (1) that
their offenses involved between 50 kilograms and 150 kilograms of cocaine, resulting in a base
offense level of 36 for each defendant pursuant to U.S.S.G. § 2D1.1(c)(2); (2) that the defendants
possessed firearms, resulting in a two-level increase in each defendant’s offense level pursuant
to U.S.S.G. § 2D1.1(b)(1); and (3) that Miguel and Ernesto Garcia were leaders or organizers in
the criminal activity involving five or more participants, resulting in a four-level increase in their
offense levels pursuant to U.S.S.G. § 3B1.1(a). Because the Garcias preserved their objections
to the enhancements below, we review their sentences de novo, and will reverse only for harmful
error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
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decided. Throughout the hearings, the district court recognized that the Guidelines
were no longer mandatory, but advisory. Accordingly, because the Guidelines
were applied in an advisory fashion, the district court’s use of extra-verdict
enhancements did not constitute Booker error. See Chau, 426 F.3d at 1323-24.
B. Booker Reasonableness
The Garcias also argue that their sentences are unreasonable under Booker
because the record does not adequately reflect whether the district court analyzed
and considered the factors set forth in 18 U.S.C. § 3553(a) prior to imposing their
sentences. After Booker, a district court, in determining a reasonable sentence,
must consider the correctly calculated sentencing range under the Sentencing
Guidelines and the § 3553(a) factors. See Booker, 543 U.S. at ___, 125 S. Ct. At
764-66; United States v. Talley, 431 F.3d 784, 786 (11 th Cir. 2005). However,
“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). We review a defendant’s sentence for unreasonableness in light of the §
3553(a) factors and the reasons given by the district court. United States v.
Williams, ___ F.3d ___, 2006 WL 68559, at *4 (11 th Cir. Jan. 13, 2006).2
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We reject the government’s argument that this Court lacks subjectmatter jurisdiction
under 18 U.S.C. § 3742(a) to review for unreasonableness a sentence within the guidelines
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We reject the Garcias’ arguments that their sentences were unreasonable.
First, with the exception of Miguel Garcia’s safety-valve argument discussed
below, the Garcias do not argue on appeal that the district court failed to calculate
their guidelines ranges correctly. Instead, they assert only that the district court
erred in enhancing their sentences based on extra-verdict factors. Second, the
court-imposed sentences were within the correctly calculated guidelines ranges and
below the maximum sentence of life imprisonment.3 See 21 U.S.C.
§ 841(b)(1)(A). Third, the district court stated that it had considered all the
statutory factors in crafting the sentences, which was sufficient to satisfy its
obligations under Booker. See Talley, 431 F.3d at 786 (explaining that
“acknowledgment by the district court that it has considered the defendant’s
arguments and the factors in section 3553(a) is sufficient under Booker”). In
addition, the district court’s comments reflect consideration of several § 3553(a)
factors apart from the advisory guidelines ranges.4 Although the district court did
range. See United States v. Martinez, ___ F.3d ___, 2006 WL 39541, at *3 (11th Cir. Jan. 9,
2006).
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The district court calculated Jesus Garcia’s guidelines range to be 262 to 327 months’
imprisonment and sentenced him to 262 months. The district court calculated Ernesto Garcia’s
guidelines range to be 324 to 405 months’ imprisonment and imposed a 328-month sentence.
The district court calculated Miguel Garcia’s guidelines range to be 292 to 365 months and
sentenced him to 328 months.
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In imposing Ernesto Garcia’s sentence, the district court stated it had chosen his
sentence at the low end of the advisory guidelines range “based on the defendant’s legal status in
the United States, and the fact that his criminal history, while it exists, consists of driving
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not explicitly discuss each statutory factor, it was not required to do so. See Scott,
426 F.3d at 1329. We find nothing on this record that convinces us that the
Garcias’ sentences were unreasonable.
C. Miguel Garcia’s Safety-valve Reduction
Miguel Garcia also argues on appeal that the district court erred by not
allowing him to debrief with the government in accordance with U.S.S.G. § 5C1.2,
thereby wrongfully denying him a safety-valve reduction. “Post-Booker, we
continue to review the district court’s application of the Guidelines just as we did
pre-Booker . . . .” United States v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005).
When reviewing the denial of safety-valve relief, we review a district court’s
factual determinations for clear error and the court’s legal interpretation of statutes
and the Guidelines de novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th
Cir. 2004). Here, we find no error because, regardless of whether Miguel Garcia
was given an opportunity to provide information to the government, he was
ineligible for safety-valve relief.
offenses, and he has no prior felony convictions.” With regard to Miguel Garcia’s sentence, the
district court explained that it had imposed a sentence at the middle of the guidelines range
“because [of] the defendant’s participation in the conspiracy, the length of the conspiracy, and
his activities with regard to the fraudulent identification while in the United States . . . .” Finally,
with regard to Jesus Garcia’s sentence, the district court declined to sentence below the advisory
guidelines range because Jesus Garcia had “so many felony convictions” and had been “using a
false name.” The district court also explained that, while his role in the offense was less than his
brothers’, it was not a minor role and that “[h]e was in this thing for a long time, and he and his
brothers were responsible for, as I found, a significant amount of cocaine.”
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To be eligible for safety-valve relief under 18 U.S.C. § 3553(f) and U.S.S.G.
§ 5C1.2, among other things, the defendant must not have possessed a firearm in
connection with the offense or have been a leader or organizer of others in the
offense. See 18 U.S.C. § 3553(f)(2), (4); U.S.S.G. § 5C1.2(a)(2), (4). The district
court found that Garcia possessed a firearm during the offense and that he was an
organizer or leader of the conspiracy. Garcia has not challenged these findings on
appeal except to argue that these extra-verdict findings violate Booker. As we
have already discussed, this Booker argument is without merit. Because Garcia
was ineligible for safety-valve relief based on the district court’s firearm
possession and role-in-the-offense findings, Garcia’s argument concerning his
opportunity to debrief is immaterial. The district court properly denied Miguel
Garcia’s request for safety-valve relief.
For all these reasons, we affirm the Garcias’ sentences.
AFFIRMED.
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