[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