United States v. Felix Esteban Thomas

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14151
April 26, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 01-00975-CR-SH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIX ESTEBAN THOMAS,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(April 26, 2006)

Before DUBINA, HULL, and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Felix Esteban Thomas appeals his 121-month sentence, which was imposed

after he pled guilty to conspiracy to obstruct, delay, and affect commerce by

robbery, in violation of 18 U.S.C. § 1951(a). On appeal, Thomas raises the
following claims: (1) the district court violated ex post facto and due process

principles by sentencing him based on a retroactive application of the remedial

opinion in United States v. Booker, 543 U.S. 220 (2005); (2) the district court

violated the Fifth Amendment’s Indictment Clause, Blakely v. Washington, 542

U.S. 296 (2004), and Booker, by enhancing his offense level based on facts that

were not alleged in the indictment, found by a jury, or admitted by him; and (3) his

121-month sentence was not reasonable. After careful review, we affirm.

I.

We review de novo a defendant’s claim that his sentence violated ex post

facto principles. United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004),

cert. denied, 126 S. Ct. 417 (2005). A challenge to the application of the

Sentencing Guidelines is a mixed question of law and fact. United States v.

Anderson, 326 F.3d 1319, 1326 (11th Cir. 2003). We review the district court’s

findings of fact for clear error and its application of the Guidelines to those facts de

novo. Id. In reviewing the ultimate sentence imposed by the district court for

reasonableness, we consider the final sentence, in its entirety, in light of the §

3553(a) factors. See United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.

2005) (“We do not apply the reasonableness standard to each individual decision

made during the sentencing process; rather, we review the final sentence for

2
reasonableness.”); see also United States v. Crawford, 407 F.3d 1174, 1178 (11th

Cir. 2005) (holding that pre-Booker standards for reviewing application of the

Sentencing Guidelines still apply post-Booker because the “reasonableness”

standard applies to the ultimate sentence imposed, not application of individual

guidelines). Our “[r]eview for reasonableness is deferential.” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[T]he party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both th[e] record and the factors in section 3553(a).” Id.

II.

The facts relevant to Thomas’s sentencing claims are these. On October 25,

2001, Thomas and five others were indicted for (1) conspiracy to obstruct, delay,

and affect commerce by robbery, in violation of 18 U.S.C. § 1951(a) (Count

1); (2) conspiracy to possess with intent to distribute five or more kilograms of

cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (Count 2); and (3) two

counts of conspiracy to carry a firearm during a drug trafficking crime and crime of

violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (o) and 18 U.S.C. § 2

(Counts 3 and 4). Three of Thomas’s co-conspirators, Alexander Brazaban, Jorge

Martin Pena, and Francisco Isaia Castillo, entered guilty pleas to some of the

counts of the indictment. In December of 2002, Brazaban, who pled guilty to

3
Counts 1 and 3, received a sentence of 41 months’ imprisonment.1 On May 21,

2002, Thomas and the two remaining co-conspirators, Miguel Berroa and

Ariasmendy Pilier, proceeded to a joint jury trial.

During trial, Detective Juan Sanchez, of the Miami-Dade County Police

Department, testified that while working in an undercover capacity, he learned of

Thomas’s willingness to commit a home invasion robbery. Detective Sanchez

testified that he planned to pose as a disgruntled drug courier and ask Thomas for

help in robbing the people he (Sanchez) claimed to work for. Another undercover

officer gave Detective Sanchez’s phone number to Thomas. Detective Sanchez

and Thomas had numerous phone conversations and also met in person several

times. During one of their meetings, Detective Sanchez relayed the situation to

Thomas and asked him if he was able commit the robbery and Thomas answered

affirmatively.

After they had discussed the logistics of the robbery, Thomas told Detective

Sanchez to provide the address of his next cocaine delivery and indicated that the

robbery would take place then. Thomas said that he would recruit at least three or

four people to help him commit the robbery. Detective Sanchez told Thomas that

1
After the briefs were filed in the instant appeal, on February 27, 2006, Pena, who pled
guilty to Counts 2 and 4, was sentenced to 52 months’ imprisonment, and Castillo, who pled
guilty to Counts 2, 4, and 5, was sentenced to 53 months’ imprisonment.

4
he would be transporting a minimum of 25 kilograms of cocaine and at some point

during their discussions, Thomas indicated he was aware that one kilogram of

cocaine was worth $100,000. Thomas also said that he previously had committed

a home invasion robbery and that he had tied up the victims. Detective Sanchez

responded that he wanted to be tied up if everyone else was going to be tied up.

During a later meeting, Thomas told Detective Sanchez that he had recruited four

more people to assist in the robbery. Thomas explained that they were going to

leave Sanchez tied up inside the house during the robbery. On the day of the

planned robbery, Thomas and five co-conspirators met at a prearranged meeting

place and proceeded to a warehouse where Detective Sanchez called Thomas and

gave him the address for the robbery. The conspirators subsequently were arrested

and four firearms were found in one of their vehicles.

Co-conspirator Castillo testified that Thomas discussed the robbery with him

on three occasions, and that he accompanied Thomas to meet with Detective

Sanchez on one occasion. On the day of the planned robbery, when the

conspirators met, Thomas brought with him four guns that he said would be

needed to commit the robbery. Castillo testified that he understood the plan was to

steal approximately 25 kilograms of cocaine.

5
 The jury acquitted Thomas of one of the firearms charges (Count 4) but

could not reach a verdict on the remaining counts, and the district court declared a

mistrial as to those counts. Co-defendants Berroa and Pilier were acquitted of

Counts 2, 3, and 4 and the district court declared a mistrial on Count 1. Berroa,

Pilier, and Thomas subsequently pled guilty to Count 1 of the indictment. The

district court waived the requirement of a presentence investigation report (“PSI”)

as to Berroa and sentenced him to time served and a 2-year term of supervised

release. In exchange for Thomas’s plea as to Count 1, the government agreed to

dismiss Counts 2 and 3.

During Thomas’s plea colloquy, he stated that he understood that the

maximum statutory sentence on Count 1 was 20 years’ imprisonment, and that the

district court would determine the appropriate punishment pursuant to the advisory

Sentencing Guidelines. Thomas also stated that the facts in the proffer he signed

were correct. The factual proffer stated, among other things, that in September and

October 2001, Thomas conspired with his co-defendants to commit a robbery of

cocaine. Thomas had been contacted by an undercover law enforcement officer

named “Juan,” who was posing as a person working for Colombian cocaine

traffickers. Thomas agreed to follow Juan during one of his cocaine deliveries to

the Colombians. Thomas and his co-defendants planned to enter the residence and

6
take the cocaine by threat or force. Thomas and his co-defendants went to a

location where they were supposed to wait for Juan to call them and tell them the

location of the delivery. Each of them was ready and willing to commit the

robbery. At the meeting place, where the conspirators were arrested, law

enforcement found four firearms in a bag located in the car with two of the

conspirators. After the district court accepted Thomas’s guilty plea, he proceeded

to sentencing.

The PSI calculated a base offense level of 20, pursuant to the guideline for

robbery, U.S.S.G. § 2B3.1(a), and recommended the following adjustments: (1) a

5-level increase pursuant to § 2B3.1(b)(2)(C) because a firearm was brandished or

possessed; (2) a 2-level increase pursuant to § 2B3.1(b)(4)(B) because a person

was physically restrained; (3) a 1-level increase pursuant to § 2B3.1(b)(6) because

a controlled substance was the object of the offense; (4) a 3-level increase pursuant

to § 2B3.1(b)(7)(D) because the loss amount was more than $250,000, but not

more than $800,000; and (4) a 4-level increase pursuant to § 3B1.1(a) because

Thomas was an organizer or leader in the criminal activity. After a 2-level

decrease for Thomas’s acceptance of responsibility, his adjusted offense level was

33. With a criminal history category I, Thomas faced a Guidelines range of 135 to

168 months’ imprisonment.

7
 Thomas filed two sentencing objections, both of which related to Blakely or

Booker or both. He asserted that the application of Booker’s remedial holding to

render the Guidelines range advisory in his case violated ex post facto principles.

He argued that because the Guidelines were not advisory when he committed the

crime, they could not be applied as advisory to his disadvantage. Instead, Thomas

urged that the pre-Booker mandatory regime, as constrained by Blakely, controlled

and required the facts supporting the enhancements in the PSI to be charged in the

indictment and proven to a jury or agreed to by him. He also objected to every

enhancement applied to his base offense level under Blakely and Booker because

the facts supporting the enhancements were not found by a jury or stipulated to in

the plea proceedings. Finally, Thomas urged that in determining his sentence, the

district court should consider that he faced deportation following his incarceration

and therefore was less of a threat to people in the United States. Thomas also

highlighted that co-defendant Berroa was sentenced to time served after being

incarcerated for about 41 months, and co-defendant Brazaban had received a 41-

month sentence.

During the sentencing hearing, the court overruled all of Thomas’s

objections. At the government’s request, the court granted Thomas a 3-level

reduction for acceptance of responsibility, rather than the 2-level reduction

8
recommended in the PSI, thereby giving him an adjusted offense level of 32 and a

corresponding Guidelines range of 121 to 151 months. The district court then

considered mitigating circumstances, including that Thomas was sorry for his

conduct and was going to be deported after serving his prison sentence. Finally,

the district court stated that it had considered the PSI, the advisory Guidelines

range, and the factors in 18 U.S.C. § 3553(a), and that a sentence at the low end of

the advisory range was appropriate and would adequately address the serious

nature of the offense. The court then imposed a 121-month jail sentence to be

followed by three years’ supervised release. This appeal followed.

III.

First, Thomas argues that although the Booker constitutional holding must

be applied retroactively to his case, the district court’s application of the Booker

statutory or remedial holding, which rendered the Guidelines advisory, violated ex

post facto principles and his due process right to “fair warning” under Bouie v.

City of Columbia, 378 U.S. 347, 353 (1964) (holding that judicial enlargement of a

criminal statute, applied retroactively, violated the Due Process Clause because it

was unforeseeable and like an ex post facto law). In support of this novel

argument, he states that under the mandatory sentencing regime in place at the time

of his crime, the maximum penalty he could receive, consistent with the Sixth

9
Amendment, was the sentence authorized only by the facts charged in the

indictment. He urges us to apply the sentencing laws in effect at the time of his

crimes with, what he terms, “the Blakely gloss.”

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court

held that, “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” The facts must also be charged in

the indictment. Id. at 476. After Thomas’s first trial, but prior to his guilty plea,

the Supreme Court decided both Blakely and Booker. In Blakely, the Supreme

Court revisited the Apprendi rule in the context of Washington state’s sentencing

guideline scheme, and clarified that the relevant “statutory maximum for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S.

at 303 (emphasis and internal quotation marks omitted).

In Booker, the Supreme Court applied its holding in Blakely to the Federal

Sentencing Guidelines. After Booker, “the Sixth Amendment right to trial by jury

is violated where under a mandatory guidelines system a sentence is increased

because of an enhancement based on facts found by the judge that were neither

admitted by the defendant nor found by the jury.” United States v. Rodriguez, 398

10
F.3d 1291, 1298 (11th Cir.) (emphasis omitted) (citing Booker, 543 U.S. at 231-

45), cert. denied, 125 S. Ct. 2935 (2005). As a remedy, in Booker, the Court

rendered the Guidelines “effectively advisory” by excising 18 U.S.C. § 3553(b)(1)

(requiring a sentence within the guideline range, absent a departure) and 18 U.S.C.

§ 3742(e) (establishing standards of review on appeal, including de novo review of

departures from the applicable guideline range). See 543 U.S. at 259. The Court

explained that “[w]ithout the ‘mandatory’ provision, the [Sentencing Reform] Act

nonetheless requires judges to take account of the Guidelines together with other

sentencing goals.” Id. at 259. The Court also instructed that the remedy was to be

applied “to all cases on direct review.” Id. at 268.

In United States v. Duncan, 400 F.3d 1297, 1306-07 (11th Cir.), cert. denied,

126 S. Ct. 432 (2005), we rejected the very argument Thomas makes here.

Duncan, like Thomas, relied on the Supreme Court’s Bouie decision and

challenged the retroactive application of Booker’s remedial opinion to his

sentencing, arguing that the application of Booker would increase the maximum

sentence to which he was subjected. We discerned no ex post facto or Bouie due

process violation in the retroactive application of the Booker remedial holding

because at the time Duncan committed his crime, (1) the United States Code

specified a statutory maximum of life imprisonment for his crime; (2) our

11
precedent recognized that the statutory maximum was the maximum specified in

the Code; and (3) the Guidelines informed the defendant that the sentencing judge

could engage in factfinding and could impose a possible life sentence. Id. at 1307-

08; see also United States v. Martinez, 434 F.3d 1318, 1323-24 (11th Cir. 2006)

(holding the same where defendant was on notice that the sentencing court would

engage in factfinding and could impose a sentence up to the statutory maximum);

United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir. 2005) (relying in part on

Duncan and rejecting argument that defendant’s Bouie due process right to fair

warning was violated; highlighting that in Booker, the Court directed that both

opinions were to be applied retroactively on direct review), cert. denied, 126 S. Ct.

1484 (2006).

During his plea colloquy, Thomas said he understood that when he

committed his crime, the maximum penalty for conspiracy to obstruct, delay, and

affect commerce by robbery pursuant to the United States Code was 20 years’

imprisonment. See 18 U.S.C. § 1951(a). Moreover, as in Duncan, the Guidelines

in effect at the time of Thomas’s plea informed him that the judge might engage in

judicial factfinding at sentencing and could impose a sentence up to the statutory

maximum.

12
 In short, we find no merit to Thomas’s arguments that he relied on the

constitutional implications of Blakely, rather than Booker. Thomas pled guilty

after Booker and, notably, stated during the plea colloquy that he understood the

court would apply the Guidelines in an advisory fashion. Both when Thomas

committed his crimes and when he pled guilty he was on notice that he could

receive a sentence within the statutory range based upon judicial factfinding that

went beyond the jury’s verdict or the facts he admitted in his guilty plea.

Accordingly, we find no ex post facto or Bouie due process violation here.

IV.

We likewise are unpersuaded by Thomas’s argument that he had a Fifth

Amendment right to have all of the facts used to enhance his Guidelines range

found by a grand jury and charged in his indictment, pursuant to Blakely and

Booker. According to Apprendi and its progeny, any fact that increases a sentence

beyond the statutory maximum must be charged in the indictment. Apprendi, 530

U.S. at 476. Although Booker held that any fact increasing punishment must be

admitted by the defendant or proved to a jury, we have stated that “both majority

opinions in Booker make clear that the decisive factor that makes pre-Booker

sentencing problematic is not extra-verdict enhancements but their use in a

mandatory guidelines system.” Rodriguez, 398 F.3d at 1301; see also United

13
States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005) (holding that if a district

court applies the Guidelines as advisory, nothing in Booker prohibits the district

court from making, under a preponderance-of-the-evidence standard, additional

factual findings that go beyond a defendant’s admission).

Because Thomas’s 121-month sentence did not exceed the statutory

maximum, and the district court applied the Guidelines in an advisory fashion, the

district court properly enhanced Thomas’s advisory guidelines range based on facts

not charged in the indictment or admitted by him.2

2
We are unpersuaded by Thomas’s related argument, made in the broadest of terms and
without citations to caselaw, that there was insufficient evidence to support base offense level
enhancements for (1) possessing a firearm, U.S.S.G. § 2B3.1(b)(2)(C); (2) physical restraint of
another, U.S.S.G. § 2B3.1(b)(4)(B); (3) the fact that a controlled substance was the object of the
robbery, U.S.S.G. § 2B3.1(b)(6); (4) the fact that the loss amount exceeded $250,000 but was less
than $800,000, U.S.S.G. § 2B3.1(b)(7)(D); and (5) his role as an organizer or leader in the offense,
U.S.S.G. § 3B1.1. The Government bore the burden of establishing by a preponderance of the
evidence the facts necessary to support these sentencing enhancements. United States v. Askew,
193 F.3d 1181, 1183 (11th Cir. 1999).

Based on our review, it is plain that Thomas’s own admissions, both at the plea colloquy and
in the factual proffer he signed in support of his plea, fully support all of these enhancements.
Thomas admitted that he conspired with five others to commit a robbery of cocaine and that on the
night of the planned robbery, four guns were found in one of his co-defendants’ bags when the
conspirators were arrested after they rendezvoused to commit the robbery. Thomas further admitted
that he planned to take the cocaine through threat or force. Detective Sanchez’s testimony that
Thomas said he was going to tie Sanchez up during the robbery, as he had during a prior robbery,
further supported the enhancement for physically restraining a person. Moreover, Detective
Sanchez’s testimony that he told Thomas that 25 kilograms of cocaine would be at the home at the
time of the robbery and the fact that Thomas indicated he knew that a kilogram was worth $100,000
supported the amount of loss enhancement. Finally, the role enhancement was supported by
Detective Sanchez’s testimony that Thomas recruited the others and co-defendant Castillo’s
testimony that Thomas recruited him. Accordingly, the district court did not clearly err in its
calculation of Thomas’s adjusted offense level.

14
 V.

Finally, Thomas challenges the reasonableness of his sentence. Thomas

argues that his 121-month sentence is unreasonable because it is too severe and

resulted in significant sentencing disparity, in light of his co-conspirators’

sentences ranging from 41 to 53 months’ imprisonment. He also contends that the

district court did not provide sufficient reasoning to support his 121-month

sentence.

At the sentencing hearing, Thomas’s counsel asserted the following grounds

in support of a sentence below the Guidelines range of 121 to 151 months’

imprisonment: (1) Thomas was sorry for his conduct; (2) Thomas faced

deportation after his incarceration; (3) Thomas’s youth; and (4) Thomas’s drinking

problem. The district court also heard Thomas’s statement asking for forgiveness

and stating that if the court would grant him the opportunity to be back with his

family, he would not disappoint the court. Finally, the district court acknowledged

that Thomas had sent a letter to the court apologizing for his conduct. The

government asserted that a sentence at the high end of the Guidelines range was

appropriate due to Thomas’s role as “the ringleader of the entire operation.”

After hearing the parties’ argument, the district court complimented Thomas

on his candor and, over the government’s request for a high-end sentence, imposed

15
a sentence at the lowest end of the Guidelines range, stating that the low-end

sentence “adequately addresses the serious nature of the offenses committed by

this defendant.” In imposing sentence, the court stated that it had considered the

PSI, the advisory Guidelines range, and the factors of § 3553(a).

Again, in determining whether a sentence is reasonable, we are guided by

the factors in 18 U.S.C. § 3553(a). Booker, 543 U.S. at 261; Winingear, 422 F.3d

at 1246. These factors include the following:

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;

(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;

(3) the kinds of sentences available;

....

(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and

(7) the need to provide restitution to any victims of the offense.

16
18 U.S.C. § 3553(a). Although sentencing courts must be guided by these factors,

“nothing 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); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (stating that,

post-Booker, district courts need not conduct an accounting of every § 3553(a)

factor and expound on how each factor played a role in the sentencing decision).

Here, we readily conclude that Thomas has not met his burden to show error

“in the light of both [the] record and the factors in section 3553(a).” Talley, 431

F.3d at 788. At sentencing, the district court heard defense counsel’s argument in

support of mitigation and Thomas’s statement of remorse, and noted Thomas’s

letter of apology to the court. These items all concerned “the nature and

circumstances of the offense and the history and characteristics of the defendant,”

within the meaning of § 3553(a)(1), since they pertained to Thomas’s family

circumstances, his youth, his drinking problems, and his deportation situation.

Moreover, in imposing sentence, the district court expressly mentioned “the

serious nature of the offenses committed by this defendant.” See 18 U.S.C. §

3553(a)(2) (discussing factors pertaining to “the need for the sentence imposed,”

including “the seriousness of the offense”). The parties’ arguments and the PSI’s

17
calculations outlined “the kinds of sentences available,” id. at § 3553(a)(3), and

Thomas received a low-end sentence that was just over one-half the length of the

20-year statutory maximum. Cf. Martinez, 434 F.3d at 1322-33 (conducting

reasonableness review and specifically noting that the sentence was “almost one-

third the length of the twenty-year statutory maximum sentence”); Winingear, 422

F.3d at 1246 (reviewing reasonableness of sentence and noting that defendant’s

sentence was “one-tenth the length of the twenty-year statutory maximum

sentence”).

As for Thomas’s argument concerning sentencing disparities among

defendants, 18 U.S.C. § 3553(a)(6), we are hard-pressed to find that imposing a

longer sentence on Thomas, when compared to his co-conspirators, was

unreasonable. Thomas alone coordinated the robbery during his contacts with the

undercover agent. His coordination efforts included (1) determining the manner by

which the crime would be committed and the level of violence necessary to carry

out the crime; (2) recruiting the other defendants to participate in a scheme to steal

cocaine from Colombian drug traffickers; and (3) obtaining four firearms in

furtherance of the crime. We conclude it was well within the bounds of

reasonableness for the district court to find that Thomas was an organizer or leader

18
of the conspiracy to obstruct commerce by robbery, and therefore to impose a

lengthier sentence on him than on the others.

In sum, the district court correctly calculated the Guidelines range,

considered the Guidelines advisory, adequately took into account the factors in 18

U.S.C. § 3553(a), and imposed a sentence that was at the low end of the Guidelines

range and was significantly less that the 20-year statutory maximum Thomas faced.

Accordingly, Thomas’s sentence was reasonable in light of the record and the

factors of § 3553(a).

AFFIRMED.

19