                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             September 7, 2006
                             No. 05-14991                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 05-20263-CR-PCH

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

RICARDO CARRALERO,

                                                         Defendant-Appellant.


                       ________________________

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

                           (September 7, 2006)


Before ANDERSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
      Ricardo Carralero appeals his 121-month total sentence, imposed after he

pleaded guilty to conspiracy to traffic in one or more unauthorized access devices

(Count 1), trafficking in one or more counterfeit access devices (Count 2),

possession of 15 or more counterfeit and unauthorized access devices (Count 3),

and possession of device-making equipment (Count 4), violations of 18 U.S.C.

§§ 1029(b)(2), (a)(1), (a)(3), and (a)(4), respectively. On appeal, he argues that the

district court imposed an unreasonable sentence based on an incorrect calculation

of the amount of loss and plainly erred by considering his criminal history and

prior convictions when calculating his guideline range and imposing a sentence

under 18 U.S.C. § 3553(a). For the reasons set forth more fully below, we affirm.

      At his plea colloquy, Carralero admitted to the following facts. Beginning in

December 2004, Carralero recruited and hired a number of individuals to swipe

customers’ credit cards using a credit card skimming device to capture the cards’

account numbers and the customers’ information. Carralero would then verify the

authenticity of the credit card numbers, and, after verification, he would pay the

individuals for each skimmed number he received. The numbers were skimmed

from customers of businesses located throughout the Southern District of Florida,

and Carralero would use the unauthorized credit card number to produce a variety

of fraudulent access devices such as fraudulent credit cards and gift cards. In



                                          2
addition, Carralero personally used the unauthorized access devices to purchase

merchandise and goods. From December 2004 through March 18, 2005, Carralero

possessed 112,000 unauthorized credit cards, which he used or intended to use to

produce unauthorized access devices. The government alleged that Carralero

caused $56,020,000 of loss, to which Carralero reserved objection. His plea was

accepted as knowing and voluntary.

       A presentence investigation report (PSI) found that Carralero was

responsible for 112,204 unauthorized access devices and further identified at least

20 corporate victims. Each unauthorized device was assessed a loss value of $500,

for a total loss amount of $56,102,000. The PSI set Carralero’s base offense level

at 6, pursuant to U.S.S.G. § 2B1.1(a).1 Next, relevant to the appeal, Carralero was

assessed a 24-level enhancement because the amount of loss was greater than $50

million, but less than $100 million, pursuant to U.S.S.G. § 2B1.1(b)(1)(M).

Carralero was also assessed a two-level enhancement because the offense involved

10 or more victims, U.S.S.G. § 2B1.1(b)(2)(A). Carralero’s total offense level was

set at 33. Carralero’s criminal history placed him in category III, which, at offense

level 33, provided for an advisory sentencing range of 168 to 210 months’



       1
        The PSI grouped all four counts together because they involved substantially the same
harm, and, therefore, the conspiracy charge in Count 1 was used to establish the base offense
level.

                                               3
imprisonment.

      Relevant to this appeal, Carralero objected to the loss calculation, arguing

that the 112,204 devices attributed to him were not actually access devices that he

possessed with the intent to defraud, and, in the alternative, requested a downward

departure, arguing that the 24-level increase overstated the seriousness of his

offense. Second, he objected that the PSI only listed nine victims. Finally, in a

sentencing memorandum, Carralero argued that the PSI’s recommended sentencing

range was unreasonable in light of the sentencing factors set forth at 18 U.S.C.

§ 3553(a).

      At sentencing, Carralero clarified his objection to the loss amount, arguing

that the government had the burden of proving that 112,000 or so numbers it found

were actually access devices. The government responded that it had not verified

every number as a credit card number because the task was too staggering to

complete. Instead, it had done a representative sampling, and not one of the

numbers from the list had come back as anything other than a legitimate credit card

number. Carralero disputed that the numbers were credit card numbers, and the

district court noted that it was “unusual for someone to have rolls and rolls of

credit card numbers that were not unauthorized.” The court believed that the loss

amount was clearly more than what the defendant conceded, but offered the parties



                                           4
a chance to work out an agreement on a number for the loss, which they accepted.

Ultimately, Carralero and the government, to avoid an evidentiary hearing, agreed

to a loss amount of more than $7 million, which would provide for a 20-level, as

opposed to 24-level, enhancement. The government further noted that the

agreement was premised upon an understanding that it would recommend a

sentence at the high end of the guidelines range.

      The court also found that there were more than 10 victims by a

preponderance of the evidence, and, therefore, the two-level enhancement was

sustained. The court further denied Carralero’s motion for a downward departure.

Based on Carralero’s agreed-to loss amount and the court’s rulings, Carralero’s

offense level was set at 29, which, at criminal history category III provided for a

sentencing range of 108 to 135 months’ imprisonment.

      The court then noted that Carralero had a substantial criminal history,

including prior involvement in possessing counterfeit credit cards. The court

stated that it would take into consideration Carralero’s prior history of fraud and

theft, as well as other § 3553(a) factors when imposing its sentence. Having

considered the factors, as well as Carralero’s sentencing memorandum, the court

found that Carralero had committed a very serious crime and his sentence should

reflect that seriousness as well as serve as a deterrent to future criminal conduct.



                                           5
Upon considering the § 3553(a) factors, the statements of the parties, and the PSI,

the court found that a mid-range sentence of 121 months’ imprisonment was a

reasonable sentence. Thus, the court imposed 60 months as to Count 1, 120

months as to Counts 2 and 3, and 121 months as to Count 4, with all terms of

imprisonment to run concurrently.

      While Carralero calls his first argument on appeal a reasonableness

argument, his challenge to his sentence is essentially that the district court

miscalculated his guidelines range because there was no evidence to support its

findings regarding the loss amount or the number of victims. Specifically, he

argues that, despite the fact that he agreed to the loss amount, the district court

used, or would have used, an inappropriate legal standard for measuring the loss

because it would have permitted the government to set a loss valuation based on

credit card numbers that had not been verified as used by Carralero. As to the

number of victims, Carralero argues that the government failed to establish a link

between the 20 alleged victims and the 112,000 some unauthorized credit card

numbers attributed to Carralero. Finally, Carralero argues that his sentence,

combined with the incorrect guidelines calculations, was unreasonable because the

§ 3553(a) factors favored a lower sentence.

      Where a defendant challenges his overall sentence, we review for



                                            6
unreasonableness. United States v. Winingear, 422 F.3d 1241, 1244-45 (11th Cir.

2005); United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 765-66, 160

L.Ed.2d 621 (2005) (holding that appellate courts review sentences for

unreasonableness in light of the § 3553(a) factors). However, before conducting a

reasonableness review of the ultimate sentence imposed, we will “first determine

whether the district court correctly interpreted and applied the guidelines to

calculate the appropriate advisory Guidelines range.” United States v. McVay, 447

F.3d 1348, 1353 (11th Cir. 2006). We review de novo a district court’s application

and interpretation of the guidelines, but review the factual findings only for clear

error. United States v. Owens, 447 F.3d 1345, 1346 (11th Cir. 2006).

      The Guidelines provide for varying levels of enhancement depending on the

amount of loss involved. See U.S.S.G. § 2B1.1(b)(1)(A)-(P). We have held that a

“sentencing court need only make a reasonable estimate of the loss, given the

available information.” United States v. Lee, 427 F.3d 881, 893 (11th Cir. 2005).

The Guidelines further provide that in cases involving stolen or counterfeit credit

cards and access devices, loss includes “any unauthorized charges made with the

counterfeit access device or unauthorized access device and shall not be less than

$500 per access device.” U.S.S.G. § 2B1.1, comment. (n.3(F)(I)). As for victims,

if the offense involved 10 or more victims, a two-level enhancement is added.



                                           7
U.S.S.G. § 2B1.1(b)(2)(I).

      In the instant case, the district court did not err by applying a 20-level

enhancement based on $7 million of loss because Carralero agreed to that amount

in lieu of the evidentiary hearing that the district court was willing to hold. Thus,

we conclude that the district court simply gave Carralero what he requested and

agreed to, and, therefore, any error was invited and not reversible. See United

States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (noting that invited error is

implicated when a party induces or invites the district court into making an error

and this Court will not even invoke plain error review where the error is invited).

      To the extent Carralero claims that the district court induced him to agree to

a $7 million loss amount, the contention is without merit. The district court

contemplated having witnesses testify that they had analyzed a sample of the

112,000 credit card numbers and confirmed that all were unauthorized. The court

believed that a representative sampling would be sufficient, and the government

explained that it would be a “staggering” task to analyze each and every number.

Carralero clearly could have required the government to present evidence, but

instead chose to forego that opportunity, and in so doing may have benefitted

himself greatly. Based on a minimum of $500 per unauthorized credit card

number, as contemplated in the guidelines, a loss amount of $7 million accounts



                                           8
for a mere 14,000 of the 112,000 numbers. Given that Carralero admitted to

possession of 112,000 unauthorized credit cards during his plea colloquy, the $7

million figure was a significant departure. His decision to accept that number

appears to be a tactical decision, and we conclude that any error was, as noted

above, invited.2

       As for the number of victims, the PSI identified no fewer than 20 corporate

victims, although at the time the PSI was issued, only 7 had come forward with the

losses actually suffered. That 13 others had not yet assessed their losses did not

mean that they were not victims. In fact, as best as can be discerned, Carralero’s

original objection was based on an earlier version of the PSI that identified only

nine victims. At sentencing, when faced with the amended PSI listing 20

identifiable victims, Carralero’s argument seemed to be that the government

needed to link the victims to the 112,000 credit card numbers, but that step seems

unnecessary in light of the fact that Carralero admitted to possessing the numbers

and the PSI identified the victims. While it would have been helpful to have the

specifics, it does not make sense that the probation office would have just made up



       2
         Carralero makes a passing argument that the district court should only have considered
those unauthorized access devices pleaded in the indictment. However, this argument is
meritless because the district court was permitted to make factual findings by a preponderance of
the evidence that went beyond the letter of the charges in the indictment at sentencing under the
advisory guidelines. See United States v. Chau, 426 F.3d 1318, 1324 (11th Cir. 2005).

                                                9
the names of 20 corporate victims. Instead, common sense says that some of the

numbers were matched back to certain identifiable victims, some of whom were

still processing their losses—not surprising in light of the vast number of credit

card numbers involved. At the time of sentencing, the government had to request a

later hearing to determine restitution because, even at that stage of the case, not all

of the victims or losses had been fully identified. Thus, we conclude that the

district court did not clearly err by finding that there were more than 10 victims

involved, and, therefore, the two-level enhancement was appropriately applied.

      Lastly, to the extent Carralero argues that his sentence was unreasonable in

light of the § 3553(a) factors, his argument lacks merit. We have rejected the

notion that a sentence within the guidelines is per se reasonable, although “the use

of the Guidelines remains central to the sentencing process.” United States v.

Talley, 431 F.3d 784, 787 (11th Cir. 2005). We have further stated that, “there is a

range of 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.” Id. at 788.

      Here, the district court considered the § 3553(a) factors and determined that,

among other things, Carralero had a “substantial criminal history” that included

prior involvement with counterfeit credit cards. The court found that Carralero had



                                           10
committed a “serious crime” and determined that his sentence needed to reflect the

seriousness of the crime, provide adequate punishment, and deter future criminal

conduct. Thus, after considering the statements of the parties, the PSI, and the

§ 3553(a) factors, the court found a mid-range sentence of 121 months’

imprisonment appropriate. Given the vast number of unauthorized credit cards

involved in this case, the district court would have been justified in sentencing

Carralero to a lengthier term of imprisonment, but took great care in imposing the

sentence it did. We cannot say that Carralero’s sentence was unreasonable.

      Next, Carralero argues that, in light of Apprendi v. New Jersey, 530 U.S.

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543

U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 421 (2005), the district court violated his

Sixth Amendment right to a jury and Fifth Amendment right to an indictment when

it enhanced his sentencing range on the basis of uncharged prior convictions, both

under the guidelines and as part of the § 3553(a) sentencing factors.

      Where, as here, Carralero failed to lodge a constitutional objection to his

sentence on grounds that the district court improperly enhanced his sentence in

violation of his Fifth Amendment right to an indictment and Sixth Amendment

right to a jury, we will review only for plain error. United States v. Rodriguez, 398



                                          11
F.3d 1291, 1298 (11th Cir), cert. denied, 125 S.Ct. 2935 (2005). “An appellate

court may not correct an error the defendant failed to raise in the district court

unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights.”

Id. “If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. We have held

that there are two possible Booker errors, the first being the constitutional error of

extra-verdict sentence enhancements, and the second being the statutory error of

applying the guidelines in a mandatory fashion. United States v. Mathenia, 409

F.3d 1289, 1291 (11th Cir. 2005).

       Post-Booker, we have held that nothing in Booker disturbed the Supreme

Court’s holdings in Almendarez-Torres or Apprendi, and that a district court,

therefore, does not err by relying on prior convictions to enhance a defendant’s

sentence. See United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2005).

We have further held that until the Supreme Court explicitly overrules it,

Almendarez-Torres will continue to be followed. Id. at 1247 (“Though wounded,

Almendarez-Torres still marches on and we are ordered to follow.”).

       Moreover, as the government points out, Carralero never objected to the

prior convictions listed in his PSI, and, therefore, those convictions are deemed



                                             12
admitted. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (holding

that, where the defendant did not challenge the relevant facts in the PSI, those facts

were deemed admitted, and no constitutional error occurred under Booker). In any

event, the court was permitted to make factual findings regarding Carralero’s prior

convictions and factor them into its guideline calculations because it correctly

understood the guidelines to be only advisory. Chau, 426 F.3d at 1324.

Accordingly, no Sixth Amendment violation or statutory error occurred.

      Similarly, the court properly considered Carralero’s criminal history under

§ 3553(a) because that section explicitly directs courts to consider the history and

characteristics of the defendant. 18 U.S.C. § 3553(a)(1). Moreover, § 3553(a) also

directs courts to impose a sentence that promotes respect for the law, affords

adequate deterrence, and protects the public from further crimes of the defendant.

Id. § 3553(a)(2)(A)-(C). Carralero’s criminal history is relevant to all of these

considerations, and, therefore, the district court did not err by considering

Carralero’s prior convictions.

      Lastly, to the extent that Carralero argues that the prior convictions were

required to be alleged in the indictment, neither Apprendi, Blakely, nor Booker

implicated the Fifth Amendment, and, in any event, prior convictions were

explicitly excluded from the rule that extra-verdict findings are unconstitutional if



                                          13
they are binding and mandatory. Booker, 543 U.S at 244, 125 S.Ct. at 756.

Furthermore, we have rejected the notion that a defendant has a Fifth Amendment

right to have prior convictions that trigger a Guidelines enhancement found by a

grand jury and charged in his indictment because the problem with extra-verdict

enhancements is their use in a mandatory guidelines system, which is no longer an

issue in this case because the district court was not bound by the guidelines. United

States v. Thomas, 446 F.3d 1348, 1355 (11th Cir. 2006); see also Gibson, 434 F.3d

at 1249 (“Fifth and Sixth Amendment concerns expressed in Apprendi, Blakely

and Booker are not implicated when a defendant’s sentence is enhanced based on

his prior convictions. . . . As far as his prior convictions are concerned, [the

defendant] had no Fifth or Sixth Amendment rights to waive.”).

      Based on the foregoing, we conclude that the district court did not commit

any error, plain or otherwise, by considering Carralero’s prior convictions and

criminal history and did not impose an unreasonable sentence in light of the loss

amount and number of victims. We, therefore, affirm.

      AFFIRMED.




                                           14
