[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 27, 2006
No. 05-13942 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00457-CR-T-30-MSS-009
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS DIAZ,
a.k.a. Gringo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 27, 2006)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jesuz Diaz appeals his sentence for conspiracy to distribute and possess with
intent to distribute one or more kilograms of a substance containing heroin in
violation of 21 U.S.C. §§ 841(b)(1)(A)(i) and 846. Diaz asserts the district court
committed reversible error by rendering an unreasonable sentence because it did
not reduce Diaz’s sentence below the applicable Guidelines range. Diaz contends
that in considering the nature of his offense and personal characteristics the district
court should have imposed a lower sentence under 18 U.S.C. § 3553(a)(1). Diaz’s
sentence is reasonable, and we affirm.1
We review a defendant’s ultimate sentence, in its entirety, for reasonableness
in light of the factors in 18 U.S.C. § 3553(a). United States v. Winingear, 422 F.3d
1241, 1246 (11th Cir. 2005). The factors in 18 U.S.C. § 3553(a) include the
following:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
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The Government contends we lack jurisdiction to review the district court’s decision not
to impose a sentence below the applicable Guidelines range. This argument is without merit. We
have recently held “a post-Booker appeal based on the ‘unreasonableness’ of a sentence, whether
within or outside the advisory guidelines range, is an appeal asserting that the sentence was imposed
in violation of law pursuant to [18 U.S.C.] § 3742(a)(1).” United States v. Martinez, 434 F.3d 1318,
1322 (11th Cir. 2006). Accordingly, we have jurisdiction under § 3742(a)(1) to review Diaz’s
sentence for reasonableness. Id. The Government also asserts we should hold a sentence within the
applicable Guidelines range is presumptively reasonable. We have expressly rejected this argument.
United States v. Talley, 431 F.3d 784, 787 (11th Cir. 2005).
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educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Talley, 431 F.3d at 786.
“[N]othing 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). Post-Booker, the sentencing court still must calculate the Guidelines
correctly. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005).
Here, the district court correctly calculated the Guidelines, considered the
factors in § 3553 and Diaz’s arguments, and imposed a reasonable sentence. Diaz
does not assert the district court erred in its calculation of the Guidelines, and a
review of the record does not reveal any error. In listening to Diaz’s arguments
and in reviewing the pre-sentence investigation report, the court considered the
history and characteristics of Diaz. 18 U.S.C. § 3553(a)(1). The court considered
the nature of the offense and found Diaz was one of the “most active sellers” in a
conspiracy involving the sale of over 10 kilograms of heroin. Id. The court also
considered the treatment available to Diaz and ordered him to participate in mental
health and drug treatment, and furthermore, the court noted Diaz should be able to
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receive treatment for his Hepatitis C in prison. 18 U.S.C. § 3553(a)(2).
Additionally, Diaz’s sentence of 188 months’ imprisonment was well below the
statutory maximum sentence of life imprisonment. 18 U.S.C. § 3553(a)(3); 21
U.S.C. §§ 841(b)(1)(A)(i) and 846.
Accordingly, we conclude Diaz’s sentence was reasonable in light of the
record and the factors of § 3553(a). We affirm Diaz’s sentence.
AFFIRMED.
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