[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 14, 2007
No. 06-13708 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00023-CR-FTM-29DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENIO GARZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 14, 2007)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Eugenio Garza appeals his 151-month sentence for conspiracy to possess
with intent to distribute 500 or more grams of cocaine. Garza argues that the
district court erred because: (i) his sentence was unreasonable under United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005); and (ii) it was above the statutory
maximum as recognized by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004), thereby violating the Ex Post Facto Clause. Garza also argues for a
sentence below the applicable guideline range based on the factors in 18 U.S.C. §
3553(a), specifically, Garza’s personal history and the disparity in the sentences
compared to those of Garza’s co-conspirators. We AFFIRM.
I. BACKGROUND
A federal grand jury indicted Garza on one count of conspiracy to possess
500 grams or more of cocaine, with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(ii), and 846. The indictment alleged that the conspiracy
began on or about March 2002 and concluded on or about 4 December 2002. After
a trial, the jury found Garza guilty of the charged offense conduct.
In December 2002, the Florida Highway Patrol (“FHP”) arrested Julio
Sanchez when they found him in possession of approximately four kilograms of
cocaine. Sanchez confessed to the FHP that he was transporting the cocaine for
Garza and planned to deliver it to Felix Gonzalez and Guadalupe Maldonado.
Gonzalez and Maldonado informed the FHP that, from April 2002 until December
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2002, they had bought approximately five to six kilograms of cocaine from Garza.
The probation officer calculated Garza’s base offense level using U.S.S.G.
§ 2D1.1(c)(4) and recommended a base offense level of 32, based on the fact that
the conspiracy involved at least 5 kilograms of cocaine. With an offense level of
32 and a criminal history category of I, the probation officer calculated that
Garza’s guideline imprisonment range was 121 to 151 months.
At Garza’s initial sentencing hearing, the probation officer did not suggest a
role enhancement under U.S.S.G. § 3B1.1(c) in the original PSI. After hearing
argument for an enhancement by the government, however, the court imposed a
two-level role enhancement to Garza’s base offense level. The court found that
Garza’s offense level was 34, his criminal history category was I, and his resulting
guideline imprisonment range was 151 to 188 months. Garza argued for a sentence
at the low end of the guideline range, based upon his personal characteristics and
the sentence disparity with his co-conspirators, of whom Sanchez received a 70-
month federal sentence and the other two, Maldonado and Gonzalez, each received
a state sentence of probation. Before imposing the sentence, the court noted that,
although it was not allowed to consider disparity in sentences under the then-
mandatory guideline system, there was a “tremendous disparity” between the
sentences of Gonzalez and Maldonado and the range for Garza. R10 at 57. The
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court then imposed a sentence of 151 months’ imprisonment, and Garza appealed
his sentence.
In Garza’s first appeal, we held that the district court did not err in its factual
findings with respect to drug quantity and leadership-role enhancement. See
United States v. Garza, 172 Fed. Appx. 983, 991-92 (11th Cir. 2006) (per curiam)
(unpublished). We then affirmed the district court’s factual findings in connection
with sentencing, but vacated and remanded for resentencing consistent with
Booker. Id. at 992.
At the resentencing hearing, Garza first objected that, under Blakely, his
statutory maximum should be limited to the facts found by a jury, which in this
case was 500 grams of cocaine. Garza argued that, based on this drug quantity, his
statutory maximum sentence was at the high end of the applicable guideline range
of 78 months of imprisonment. Because, as Garza conceded, Eleventh Circuit case
law rejected his argument, the district court overruled that objection.
The district court adopted the factual statements and the application of the
guidelines as stated in the PSI, which included the leadership-role enhancement
from the initial sentencing hearing. The court thus found that the applicable
guideline imprisonment range was 151 to 188 months. Garza argued that, under
the factors in 18 U.S.C. § 3553(a), the court should impose a sentence below the
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applicable guideline imprisonment range. First, Garza argued that his personal
characteristics–specifically, working since he was 12 or 13-years old to support his
family, being married to the same person for 14 years, and having no prior criminal
history except a misdemeanor for leaving the scene of an accident–warranted a
lower sentence. Garza also pointed out that he had passed the General Education
Development test while in prison. Second, Garza argued that the disparity in
sentences between him and his co-conspirators warranted a lower sentence.
Specifically, Garza contended that two co-conspirators, Maldonado and Gonzalez,
were more culpable and had only received state sentences of probation, and
another, Sanchez, had only received a federal sentence of 70 months of
imprisonment.
The government responded that Garza’s work history should not be used in
his favor because he used his work as a truck driver to carry out his illegal
activities. As to the disparity in sentencing, the government contended that
Sanchez was held accountable for the same quantity of drugs as Garza, but that
Sanchez pleaded guilty and received a three-point reduction for acceptance of
responsibility and a two-point safety-valve reduction under U.S.S.G. § 5C1.2.
Thus, the government argued that Sanchez’s base offense level was 5 points lower
than Garza’s level and his applicable imprisonment range was 70 to 87 months.
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The government also contended that Maldonado and Gonzalez should not be
compared because they were sentenced in state court, and, moreover, they both
pleaded guilty and cooperated with the state.
The court found that none of Garza’s arguments warranted a departure
below the applicable guideline range. The court first found that the fact that Garza
passed the GED test while in prison did not warrant a lower sentence. The court
also found that Garza’s work history did not weigh in his favor because he used his
work as a cover for delivering cocaine. As to the disparity in sentencing, the court
found that it could compare the state sentences, but found that the sentences
imposed on Maldonado and Gonzalez were not “particularly relevant or
significant.” R11 at 42. The court found that although Sanchez was “more
similarly situated,” Sanchez testified and received safety-valve and acceptance of
responsibility reductions. Id. The court noted that none of these reductions
applied to Garza and that he also had received a role enhancement. The court then
imposed a sentence of 151 months of imprisonment, which was at the low end of
the applicable guideline range. The court explained that it imposed a sentence at
the low end because the sentence would “not undermine the sentencing factors of
the sentencing guidelines, and, under the facts of the case, the low end [was]
appropriate.” Id. at 51. The court noted that it had considered all the factors under
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§ 3553(a).
II. DISCUSSION
After the Supreme Court’s opinion in Booker, we review sentences for
reasonableness, with the Guidelines applied as advisory. United States v. Talley,
431 F.3d 784, 785 (11th Cir. 2005) (per curiam). The district court must follow a
two-step process to determine a defendant’s sentence by (1) consulting the
Guidelines and correctly calculating the Guideline range, and (2) considering the
factors under 18 U.S.C. § 3553(a). Id. at 786. As to the Guidelines calculation,
“[w]e review a district court’s factual findings for clear error and its application of
the Guidelines de novo. United States v. Moriarty, 429 F.3d 1012, 1021 (11th Cir.
2005) (per curiam) (quotation omitted).
The factors in § 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
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 (citing 18 U.S.C. § 3553(a)). Relevant to this appeal, the
specific factor discussing sentence disparity states that the sentencing court should
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consider “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6).
“[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). We noted in Scott that the defendant argued at length about the factors
and that the district court explicitly acknowledged that it had considered the
§ 3553(a) factors. Id. at 1329-30. Although we have rejected a per se rule, we
have explained that a sentence within the applicable guideline range has the
expectation that the sentence is reasonable. Talley, 431 F.3d at 788. Review for
reasonableness is deferential, and there are a range of sentences that are reasonable.
Id. The party who challenges the sentence has the burden of proving that the
sentence is unreasonable in light of the record and the § 3553(a) factors. Id.
Garza argues that his sentence was procedurally unreasonable because the
court failed to address his disparity-in-sentencing argument. Garza further
contends that, because the court sentenced him inside the applicable guideline
range, it did not consider a sentence outside that range. (Id. at 20). Garza then
argues that his sentence was substantively unreasonable because the court did not
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weigh the § 3553(a) factors properly. (Id. at 21-30). Specifically, Garza contends
that his nature and circumstances, specifically his work history, education, marital
status, and criminal history, militate in favor of a lower sentence. Also, Garza
argues that the sentence disparities between his sentence and the 70-month federal
sentence for Sanchez and the state sentences of probation for Maldonado and
Gonzalez weigh toward a lower sentence. Garza further contends that the court
gave undue weight to the applicable guideline range. Last, Garza argues that the
need for specific and general deterrence warrants a lower sentence. (Id. at 28-30).
Here, the district court did not impose an unreasonable sentence. The court
specifically considered Garza’s personal history and the disparity in sentences. See
18 U.S.C. § 3553(a)(1) and (6). Furthermore, the court considered the available
sentences and consulted the Guidelines. See 18 U.S.C. § 3553(a)(3) and (4). The
court sentenced Garza within the applicable guideline range, in fact, at the low end,
which carries at least an expectation of reasonableness. See Talley, 431 F.3d at
788. As to Garza’s argument that his sentence was disparate, the other defendants
were not similarly situated. Congress has specifically instructed sentencing courts
to consider “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” 18 U.S.C. §
3553(a)(6). “The guidelines, structured to account for relative culpability and
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differences in prior records of defendants, demonstrate that the Sentencing
Commission fully anticipated sentencing disparity between defendants involved in
the same offense.” United States v. Chotas, 968 F.2d 1193, 1197 (11th Cir. 1992)
(per curiam). Other co-defendants pled guilty and cooperated with the
government. Garza directed Sanchez’s participation in the offense and Sanchez
received a safety valve reduction and a reduction for his acceptance of
responsibility, all of which are different from Garza’s situation. See, e.g., United
States v. Pisman, 443 F.3d 912, 916 (7th Cir. 2006) (disparity with co-defendant
who cooperated and received substantial assistance departure not “unwarranted”
under § 3553(a)(6)); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir.
2005), cert. denied, 126 S. Ct. 1414 (2006) (“A well-founded claim of disparity . . .
assumes that apples are being compared to apples. Here, there is no true disparity;
differences between the appellant’s belated and grudging cooperation and [his co-
defendant’s] prompt and full cooperation sensibly account for the differing
sentences.”). Therefore, the district court properly considered this factor and found
that it did not militate in favor of a sentence below Garza’s applicable guideline
range. Accordingly, because the district court considered the § 3553(a) factors and
Garza’s arguments and we are not “left with the definite and firm conviction that
the district court committed clear error of judgment in weighing the §3553(a)
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factors,” we hold that his sentence was reasonable. See United States v. Williams,
456 F.3d 1353, 1363 (11th Cir. 2006).
As to Garza’s Blakely argument, in United States v. Duncan, 400 F.3d 1297,
1307-08 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005), we held that the statutory
maximum sentence is found in the applicable United States Code, and therefore,
there is no ex post facto or due process violation by the application of Booker to
make the Guidelines retroactively advisory. Accordingly, the district court did not
err in applying this case law. To the extent Garza argues that we should reverse
our prior decision, “[t]he law of this circuit is ‘emphatic’ that only the Supreme
Court or this court sitting en banc can judicially overrule a prior panel decision.”
Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997) (citation omitted).
III. CONCLUSION
After careful review of the record and the parties’ briefs, we hold that the
district court did not impose an unreasonable sentence and there was no ex post
facto violation. Garza’s sentence is AFFIRMED.
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