[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15588 APR 17, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-20174-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ARTURO GIRALDO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 17, 2006)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
This is Jorge Giraldo’s second appeal from his 57-month sentence, which
was imposed after he pled guilty to importing 100 grams or more of heroin, in
violation of 21 U.S.C. §§ 952(a), 960(b)(2). On March 27, 2005, we vacated
Giraldo’s sentence after concluding that the government had not met its burden to
show that the district court’s Booker 1 non-constitutional error was harmless. See
United States v. Giraldo, 132 Fed. App’x 800 (11th Cir. 2005) (“Giraldo I”).
Pursuant to our remand instructions in Giraldo I, the district court conducted a
resentencing hearing at which the parties presented arguments on the applicability
and effect of the sentencing factors enumerated in 18 U.S.C. § 3553(a).
Based on Giraldo’s adjusted base offense level of 25 and his criminal history
category I, he faced an advisory Guidelines range of 57 to 71 months’
imprisonment, which, in Giraldo I, we noted the district court correctly determined.
Id. at 806 n.6. At the resentencing hearing, Giraldo argued that the § 3553(a)
factors supported a three-year sentence because: (1) he was involved in the
transportation of heroin, rather than its distribution, and therefore, he was less
culpable; (2) he had no prior criminal history; (3) he had strong family ties and his
children had been forced to discontinue their education as a result of his
incarceration; (4) upon release from prison, he likely would face deportation to
Colombia; and (5) a 3-year sentence would be sufficient to promote respect for the
law given that he has never been imprisoned before. In addition to hearing these
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United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
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arguments, the district court reviewed a letter written by Giraldo’s son and heard
Giraldo’s statement expressing his repentance and asking for forgiveness.
The government argued that a 57-month sentence was reasonable, in light of
Booker and the § 3553(a) factors, because the sentence was at the low end of the
Guidelines range and Giraldo transported nearly one kilogram of heroin into the
United States. The government also highlighted the importance of consistency
among sentences for similar types of crimes.
After hearing the parties’ arguments and expressly acknowledging that the
Guidelines were advisory in nature, the district court again sentenced Giraldo to 57
months’ imprisonment followed by three years’ supervised release. The court
indicated that it had considered the parties’ statements, the PSI, and the factors set
forth in 18 U.S.C. § 3553(a). This appeal, Giraldo II, followed.
Based on our careful review of the record, and in particular the transcript of
the resentencing hearing, we conclude that Giraldo’s sentence was reasonable, in
light of the § 3553(a) factors and the advisory Guidelines range. The district court
explicitly stated that it considered Giraldo’s arguments from the resentencing
hearing and the § 3553(a) factors. Contrary to Giraldo’s argument on appeal, the
district court was not required to enumerate or discuss, as part of its sentencing
scheme, every § 3553(a) factor. See United States v. Scott, 426 F.3d 1324, 1329
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(11th Cir. 2005) (holding that although the district court must be guided by the §
3553(a) 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”). “[A]n 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
(11th Cir. 2005). Moreover, the district court sentenced Giraldo to the lowest end
of the Guidelines range. Cf. id. at 878-88 (observing that although a sentence
within the advisory Guidelines range is not per se reasonable, we ordinarily expect
such a sentence to be reasonable). On this record, Giraldo has not met his burden
to establish that his sentence was unreasonable.
AFFIRMED.
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