[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 23, 2005
No. 05-12138 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00297-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO HERRERA-OBANDO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 23, 2005)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Alberto Herrera-Obando appeals his 108-month sentence imposed
for conspiracy to possess with intent to distribute five or more kilograms of
cocaine while aboard a vessel subject to the jurisdiction of the United States, 46
App. U.S.C. §§ 1903(a), (j), and possession with intent to distribute five or more
kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United
States, 46 App. U.S.C. § 1903(a). He argues that the district court imposed an
unreasonable sentence. In support, he argues that (1) he is a very poor Colombian
national; (2) he has no prior criminal history; (3) he committed a nonviolent
offense out of financial necessity in order to provide medical care for his son and
mother-in-law; and (4) he was fully cooperative with the government. Moreover,
he argues that there is no evidence that the go-fast vessel he was traveling on was
heading to the United States or that the offense was in any way related to the
United States, and the large quantity of drugs involved did not warrant a larger
penalty then would be appropriate if a smaller amount of drugs had been involved.
He also argues that this Court should adopt the approach of the Second Circuit and
find that the Federal Sentencing Guidelines are not per se reasonable, and any
district court’s conclusion that a sentence within the advisory Guidelines range is
reasonable violates the Sixth Amendment. Lastly, he argues that a sentence of less
than 108 months would adequately reflect the seriousness of the drug offense, deter
a first time offender from committing future crimes, protect the American public,
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and afford him ample time for rehabilitation.
In Booker, the Supreme 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.” United States v. Booker,
543 U.S. ___,
125 S. Ct. 738, 764,
160 L. Ed. 2d 621 (2005). Post-Booker,
sentences are still reviewed for reasonableness. Booker, 543 U.S. at ___, 125 S.
Ct. at 765-66; see also United States v. Crawford,
407 F.3d 1174, 1178 (11th Cir.
2005) (noting that “Booker established a ‘reasonableness’ standard for the sentence
finally imposed on a defendant”).
In determining whether a sentence is reasonable, the court should be guided
by the factors in
18 U.S.C. § 3553(a). Booker, 125 S. Ct. at 765-66; United States
v. Winingear,
422 F.3d 1241, 1246 (11th Cir. 2005). “These factors include 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.” Winingear,
422 F.3d at 1246
(citing
18 U.S.C. § 3553(a)). Another factor listed in § 3553(a) is “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). Although
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the court must be guided by these factors, we have held that “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, No. 05-11843, ___ F.3d ___ (11th Cir. Sept. 27,
2005).
In Winingear, we recently conducted a review of an appellant’s sentence for
reasonableness. Winingear,
422 F.3d at 1246. In addition to discussing the nature
and circumstances of the offense and the appellant’s criminal history, we
specifically noted that the sentence imposed was “one-tenth the length of the
twenty-year statutory maximum sentence,” and held that the sentence was
reasonable.
Id. In Scott, we upheld an appellant’s sentence as reasonable, noting
that the district court calculated the correct guidelines range, treated the Guidelines
as advisory, considered the § 3553 factors, and imposed a sentence at the low end
of the Guidelines range. Scott, No. 05-11843, ___ F.3d ___.
We are persuaded that the reasonableness of Herrera-Obando’s 108-month
sentence is shown by the facts that the district court calculated the Guidelines
range correctly, departed from the Guidelines range, treated the Guidelines range
as advisory only, expressly stated that it had considered the factors in
18 U.S.C.
§ 3553(a), and the sentence imposed was relatively minimal in comparison to the
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statutory maximum life sentence. Accordingly, we affirm Herrera-Obando’s
sentence.
AFFIRMED.
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