[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 19, 2006
No. 05-15712 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00133-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK MORGAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 19, 2006)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Frank Morgan appeals his sentence of 151 months’ incarceration following
his guilty plea for possession with intent to distribute 5 grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Morgan was
originally sentenced under a mandatory Guidelines scheme, and we remanded to
the district court for resentencing in light of United States v. Booker, 543 U.S. 220
(2005). United States v. Morgan, No. 04-14320 (11th Cir. June 28, 2005). In this
appeal, Morgan argues that (1) the application of a career offender enhancement,
pursuant to U.S.S.G. § 4B1.1, resulted in an unreasonable sentence under 18
U.S.C. § 3553(a); and (2) the retroactive application of Booker impermissibly
increased the statutory maximum sentence beyond that authorized by the facts
alleged and admitted to, in violation of the Ex Post Facto Clause. We affirm.
I.
Morgan first argues that the application of the career offender enhancement
pursuant to U.S.S.. § 4B1.1 resulted in a sentencing range that was greater than
necessary, and therefore unreasonable under the sentencing factors enumerated in
18 U.S.C. § 3553(a). We disagree.
Post-Booker, this Court has established a two-part process for district courts
to use in calculating sentences. United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005). “First, the district court must consult the Guidelines and correctly
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calculate the range provided by the Guidelines.” Id. Second, the court must
consider the sentencing factors enumerated in 18 U.S.C. § 3553(a), including the
history and character of the defendant, “the available sentences, the applicable
Guideline range, the nature and circumstances of the offense, and the need for the
sentence to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, and provide the defendant with needed
medical care.” United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005).
Once the district court has calculated the sentence under the advisory
Guidelines and has considered the sentencing factors in § 3553(a), it can impose a
sentence either more severe or more lenient than that suggested by the advisory
Guideline range, so long as the sentence is reasonable. Talley, 431 F.3d at 788;
United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). The party
challenging the sentence has the burden of “establishing that the sentence is
unreasonable in the light of both [the] record and the factors in section 3553(a).”
Talley, 431 F.3d at 788.
In this case, Morgan conceded at resentencing that the district court correctly
calculated the advisory Guideline range. The district court considered the
§ 3553(a) sentencing factors in determining Morgan’s sentence, which was at the
low end of the advisory guideline range. We have held that “there is a range of
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reasonable sentences from which the district court may choose, and when the
district court imposes a sentence within the advisory Guidelines range, we
ordinarily will expect that choice to be a reasonable one.” Talley, 431 F.3d at 788.
Here, Morgan’s argument that his sentence was unreasonable fails. His sentence
was towards the bottom of the Guidelines range, and he fails to satisfy his buredn
of proving that his sentence is unreasonable under § 3353(a).
II.
To establish an ex post facto violation, a defendant must show that his
punishment was made more burdensome by a law passed after the commission of
his crime.1 United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004), cert.
denied, 126 S.Ct. 417 (2005). To prevail on an ex post facto claim, a party must
demonstrate that (1) the law was retrospective, in that it applied to events occurring
before its enactment, and (2) he was disadvantaged by it. Id.
We have held that there is no ex post facto violation based on the retroactive
application of Booker’s remedial opinion making the Guidelines advisory. United
States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir.), cert. denied, 126 S.Ct. 432
(2005) (decided under plain error review). In Duncan, we determined that because
Booker made the Guidelines advisory, not mandatory, “the various top ranges of
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We review properly preserved constitutional claims de novo, but reverse only for
harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
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the Guidelines are no longer binding, and therefore, no longer constitute ‘little
relevant maximums.’ This leaves as the only maximum sentence the one set out in
the United States Code.” Id. at 1303. Furthermore, a district court does not err by
relying on prior convictions to enhance a defendant’s sentence. United States v.
Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005).
Here, Morgan had ample warning, based on the maximum statutory
sentences and the relevant statutory provisions contained in his indictment that a
sentence of up to 40 years was a possible consequence of his actions. See 21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii). He also knew that his prior convictions
would be used in calculating his applicable Guidelines range. Therefore, no ex
post facto violations are implicated in this case. See Duncan, 400 F.3d at 1307.
Accordingly, the district court committed no error.
AFFIRMED.
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