[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 3, 2006
No. 05-15613 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00281-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL MARTIN HAGA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 3, 2006)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant was convicted on a plea of guilty of being a convicted felon in
possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and the
district court sentenced him to prison for a term of 96 months. He now appeals his
sentence, contending that the court infringed his Sixth Amendment rights under
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),
when, applying the Sentencing Guidelines, it concluded that it could not depart
downward from the sentence range prescribed by U.S.S.G. § 4A1.3(b)(1) because
he is an armed career criminal.
In United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005), we held
that Booker’s instruction that the district courts first consult the Guidelines in
fashioning a sentence necessarily implies that they must determine the appropriate
Guidelines sentence range. In United States v. Brehm, No. 05-13426, manuscript
at 13 (11th Cir. Mar. 17, 2006), the defendant contended that the district court had
the discretion to grant a safety-valve reduction under U.S.S.G. § 5C1.2, even
though he had more than one criminal history point (and thus was ineligible for
safety-valve treatment), on the theory that Booker rendered the eligibility
requirements for safety-valve relief discretionary. We disagreed, and held that
Booker does not render application of individual Guidelines provisions advisory;
rather, the district court remains obligated to calculate correctly the guidelines
range. Id. at 20.
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Section 4A1.3(b)(1) of the Guidelines provides for a downward departure in
a defendant’s criminal history category if the court finds that the defendant’s
criminal history category “substantially over-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other
crimes.” Section 4A1.3(b)(2)(B), however, prohibits the court from making a
downward departure under this subsection if the defendant is an armed career
criminal.
Appellant’s Sixth Amendment rights were not violated because the district
court correctly calculated his advisory Guidelines sentence range. Since appellant
is an armed career criminal, § 4A1.3(b)(2)(B) prohibited the court from granting
him the downward departure he requested. Appellant’s sentence is therefore due to
be, and is,
AFFIRMED.
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