[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 23, 2006
No. 05-15492 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00210-CR-T-27-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR VELA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 23, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Oscar Vela appeals his 108-month sentences imposed after re-
sentencing stemming from his plea of guilty to conspiracy to possess with intent to
distribute 500 grams or more of methamphetamine, possession with intent to
distribute 50 grams or more of methamphetamine, and possession with intent to
distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§
846, 841(b)(1)(A)(viii), 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(viii), respectively. Vela had a total offense level of 31 and
a criminal history category of I, resulting in a guideline range of 108 to 135 months
imprisonment.
Vela argues that his sentences violate the holding in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), because his
sentences were increased based on facts not alleged in the indictment nor admitted
by him. He asserts that ex post facto principles require that his sentences be no
greater than the high-end of the guideline range determined based on the facts
alleged in the indictment and incorporated into his guilty plea. Since any fact
increasing the maximum guideline sentence had to be charged in the indictment
under the mandatory guideline scheme, he would have had an offense level of 27
and criminal history category of I, which would have resulted in maximum
guideline sentence of 87 months. Although district courts now have discretion in
sentencing, applying the guidelines as advisory violates his due process rights
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because it results in him suffering a greater punishment than he would have
constitutionally faced under the law when he committed the offenses. He contends
that Booker was unexpected and indefensible by reference to prior law. He
concedes that this Court has rejected a similar argument, but maintains his
argument for purposes of further review.
We review claims that a sentence was imposed in violation of the Ex Post
Facto Clause de novo. United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir.
2004), cert. denied, 126 S. Ct. 417 (2005). “The ex post facto clause prohibits the
enactment of statutes which . . . make more burdensome the punishment for a
crime, after its commission . . .” Id. (internal quotations omitted). Two elements
are needed to find an ex post facto violation: (1) the law must be retrospective,
meaning it applies to events occurring before its enactment; and (2) the offender
must be disadvantaged by it. Id. In United States v. Duncan, 400 F.3d 1297,
1306-1308 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005), we determined that
Duncan’s sentence did not violate ex post facto principles because, among other
things: 1) at the time he committed the offense, from 1999-2002, this Circuit, as
well as all others, viewed the United States Code as establishing maximum
sentences; and 2) the U.S. Code provided for the maximum sentence to which
Duncan was sentenced. Id. at 1307-1308.
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We conclude from the record that Vela’s 108-month sentences do not violate
ex post facto concerns. Vela had fair warning that he faced up to life imprisonment
for two offenses and 40 years imprisonment for the third.
Vela also argues that the sentences imposed by the district court are
unreasonable because the quantity of the drugs involved in the offenses was the
only offense-specific factor contributing to the guideline range, and the evidence
showed that the government, through its confidential source, determined the
amount of drugs sold. He contends that drug quantity was an artificial measure of
guilt in his case, and it bore no relation to his actual culpability for the offense. He
also contends that the district court should have looked beyond the advisory
guideline range and should have considered all of the § 3553(a) factors.
Specifically, the court should have fully considered the nature and circumstances
of his offense conduct, including his limited role in the conspiracy and the fact that
he was not going to profit financially from the transaction. Additionally, Vela
argues that a 108-month sentence was more than necessary to achieve the purposes
of sentencing. He also argues that the court gave no reason why the 87-month
sentence he proposed was not a reasonable sentence, and the government offered
no reason why the drug amount, which it determined, should be the determinative
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factor in considering the length of his sentence.
“After the district court has accurately calculated the Guideline range, it may
impose a more severe or more lenient sentence that we review for reasonableness.”
United States v. Winingear, 422 F.3d 1241, 1244-1245 (11th Cir. 2005) (internal
quotations omitted). The factors set forth in 18 U.S.C. § 3553(a) guides this
Court’s review of the reasonableness of a sentence. Id. at 1246. These factors
include the available sentences, applicable guideline range, nature and
circumstances of the offense, and the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, and provide just
punishment for the offense. 18 U.S.C. § 3553(a). Sentences within the applicable
guideline range are not per se reasonable. United States v. Talley, 431 F.3d 784,
786-787 (11th Cir. 2005).
We conclude that Vela’s 108-month sentences are not unreasonable. The
sentencing guidelines call for consideration of the drug amount to determine a
defendant’s offense level, and district courts, post-Booker, must still correctly
calculate the guidelines range. The applicable guideline range remains one of the
factors to be considered in determining an appropriate sentence, and the record
reflects that the district court considered the applicable guideline range and the
other factors outlined in § 3553(a). Vela’s sentences are within the applicable
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guideline range, and are only a fraction of the applicable statutory maximum
sentences.
For the above-stated reasons, we affirm Vela’s sentences.
AFFIRMED.
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