[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 5, 2006
No. 05-12909 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00563-CR-T-23MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL BORDEN-BRYAN,
a.k.a. Miguel Borden,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 5, 2006)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Miguel Borden-Bryan (“Borden”) appeals his 168-month sentence for
possession with the intent to distribute 5 kilograms or more of cocaine while on
board a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. App. § 1903(a), (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii), and
conspiracy to possess with the intent to distribute 5 kilograms or more of cocaine
while on board a vessel subject to the jurisdiction of the United States, in violation
of 46 U.S.C. App. § 1903(a), (g), (j) and 21 U.S.C. § 960(b)(1)(B)(ii).
On appeal, Borden argues that the district court treated the guidelines as
mandatory, in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,
160 L.Ed.2d 621 (2005).
Borden appears to raise a pre-Booker sentencing challenge that he was
sentenced pursuant to a mandatory guideline scheme. Borden, however, was
sentenced in May 2005, four months after Booker was issued. WE reject Borden’s
argument that the district court felt that it did not have the discretion to sentence
outside of the guidelines. The district court followed Booker by indicating at
sentencing that it would first determine an advisory guideline range, then ask the
parties to call attention to any matters under the § 3553(a) factors that should be
considered in sentencing. The court later stated that it would sentence Borden
pursuant to the Sentencing Reform Act, to the extent that it was applicable after
Booker, and 18 U.S.C. § 3553(a). In short, based on the totality of the sentencing
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transcript, we are satisfied that the district court properly understood that the
guidelines were advisory and followed the post-Booker procedures at sentencing.
Thus, there is no error in the district court’s treatment of the guidelines.
AFFIRMED.
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