                                                   [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT                  FILED
                   ________________________       U.S. COURT OF APPEALS
                                                    ELEVENTH CIRCUIT
                                                        June 24, 2008
                        No. 07-10929                THOMAS K. KAHN
                    Non-Argument Calendar               CLERK
                  ________________________

                D. C. Docket No. 00-00933-CR-SH

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellant,

                            versus

ORLANDO E. PUCHE,
MAURICIO JAVIER PUCHE,
ENRIQUE ALFONSO PUCHE,

                                                  Defendants-Appellees.

                  ________________________

                        No. 07-10930
                    Non-Argument Calendar
                  ________________________

                D. C. Docket No. 00-00933-CR-SH

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellant,

                            versus
MAURICIO JAVIER PUCHE,

                                                              Defendant-Appellee.

                         ________________________

                               No. 07-10931
                           Non-Argument Calendar
                         ________________________

                      D. C. Docket No. 00-00933-CR-SH

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellant,

                                     versus

ENRIQUE ALFONSO PUCHE,

                                                              Defendant-Appellee.



                         ________________________

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

                                (June 24, 2008)

Before BARKETT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     After a second resentencing, the government appeals the district court’s



                                        2
sentence of time served (approximately 66 months’ imprisonment) imposed on

Orlando Puche, Enrique Puche, and Mauricio Puche (“the Puches”) for their

convictions for one count of conspiracy to commit money laundering, in violation

of 18 U.S.C. § 1956(a)(3) and (h). These 66-month sentences are a downward

variance from Orlando Puche’s advisory guidelines range of 135 to 168 months’

imprisonment and Enrique and Mauricio Puche’s advisory guidelines ranges of

108 to 135 months’ imprisonment. After review, we conclude that the district

court based its variance on a legally erroneous factor, and thus we vacate and

remand.

                                I. BACKGROUND

      This appeal marks the third occasion that this case has been before us. We

briefly review its procedural history.

A.    Conviction, Sentencing and First Direct Appeal

      The Puches proceeded to trial on the single charge of conspiracy to commit

money laundering. The trial evidence established that the Puches owned and

operated a money transmittal company, Gloria Exchange Corporation (“GEC”), in

Miami, Florida. United States v. Puche, 350 F.3d 1137, 1141 (11th Cir. 2003).

The Drug Enforcement Agency (“DEA”), in connection with local police,

conducted a sting operation targeting another money transmittal company, wherein



                                          3
an officer “posed as a drug dealer responsible for collecting cash from various drug

sales locations and forwarding money to overseas accounts.” Id. Through the

owner of the other company, officers eventually met with employees of the Puches.

See id. at 1141-42. Over the next few months, agents brought a total of $714,500

in small bills to the Puches’ GEC, which was deposited into GEC’s accounts and

then transferred to accounts in Canada and England that were controlled by the

DEA. Id. at 1142. The jury found the Puches guilty.

      At a sentencing hearing in April 2002, the district court calculated guidelines

ranges of 188 to 235 months’ imprisonment for Orlando Puche and 135 to 168

months’ imprisonment for Enrique and Mauricio Puche. The district court

sentenced Orlando Puche to 188 months’ imprisonment, and Enrique and Mauricio

Puche to 151 months’ imprisonment each, all of which were at the low end of their

respective guidelines ranges. The Puches were imprisoned on July 27, 2001, when

the jury found them guilty.

      In November 2003, this Court affirmed the Puches’ convictions but

concluded that the district court erroneously failed to apply a three-level reduction

to their offense levels under U.S.S.G. § 2X1.1(b)(2). See id. at 1156-57.

Accordingly, this Court vacated the Puches’ sentences and remanded to the district

court “for the limited purpose of applying the three-level reduction under U.S.S.G.



                                           4
§ 2X1.1(b)(2) and then resentencing within the resulting U.S.S.G. range.” Id. at

1157.

B.      Resentencing and Second Direct Appeal

        At a resentencing hearing in December 2004, the district court applied the

three-level § 2X1.1(b)(2) reduction and recalculated guidelines ranges of 135 to

168 months’ imprisonment for Orlando Puche and 108 to 135 months’

imprisonment for Enrique and Mauricio Puche. The district court resentenced

Orlando Puche to 135 months’ imprisonment and Enrique and Mauricio Puche to

108 months’ imprisonment, all of which were at the low end of their respective

guideline ranges.

        In this second appeal, this Court concluded that “the district court committed

statutory Booker1 error by sentencing the Puches under a mandatory system,” and

that such error was not harmless because the record did not indicate how the

district court would have sentenced the Puches under an advisory guidelines

system. See United States v. Puche, Nos. 05-10033, 05-10035, 05-10037, slip op.

at 7-11 (11th Cir. Nov. 22, 2005) (unpublished). Accordingly, this Court again

vacated the Puches’ sentences and remanded “for the limited purpose of

resentencing pursuant to Booker.” Id. at 13. To that end, this Court’s opinion


        1
         The Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),
after this Court’s opinion in the Puches’ first appeal.

                                               5
instructed that:

       [T]he district court is required to sentence the Puches under an
       advisory Sentencing Guidelines regime, and shall consider the
       Sentencing Guidelines range of 135 to 168 months’ imprisonment for
       Orlando Puche, and the range of 108 to 135 months’ imprisonment for
       Enrique and Mauricio Puche, and “other statutory concerns as well,
       see 18 U.S.C. § 3553(a) . . . .”

Id. at 14 (quoting Booker, 543 U.S. at 245, 125 S. Ct. at 757) (bracket omitted).

C.     Briefing Before Resentencing

       Prior to their second resentencing, the Puches filed sentencing memoranda

arguing that several factors supported resentencing them below the guidelines

range and that sentences of time served would further the purposes of 18 U.S.C.

§ 3553(a). Specifically, the Puches cited these factors: (1) their money laundering

operation was non-violent, (2) there were no third-party victims, (3) they had

worked to better themselves while incarcerated, (4) they had a strong support

system of family and friends, (5) they would not pose a threat to society if released,

and (6) the amount-of-loss figure used to enhance their guidelines calculations

violated their Sixth Amendment rights because it was not submitted to the jury.2

       The Puches later filed a supplemental memorandum that (1) cited several

cases where defendants who laundered more money than they did received



       2
          Although Orlando, Mauricio, and Enrique Puche filed separate sentencing memoranda,
their arguments were essentially identical.

                                             6
sentences below the Puches’ guidelines ranges, and (2) cited a Department of

Justice report stating that the average sentence for those convicted of money

laundering offenses was 44 months’ imprisonment and that approximately one-

quarter of those convicted in 2001 of money laundering offenses received only

probation. The Puches also submitted letters from friends and family that

described them as good, hard-working men.

      The government’s brief responded that sentences of time served would not

be appropriate. Instead, the government recommended that sentences at the low

end of the advisory guidelines range–i.e., 135 months’ imprisonment for Orlando

Puche and 108 months’ imprisonment for Enrique and Mauricio Puche–were

reasonable in light of the § 3553(a) factors. In response to the Puches’ claim of

Booker error in the amount-of-loss figure under an advisory regime, the

government argued that (1) the loss amount was, in fact, determined by the jury

when it found the forfeiture amount, and (2) post-Booker, judge-found facts may

still be used to calculate the advisory guidelines range and need not be charged,

proven beyond a reasonable doubt, or admitted by the defendant.

D.    Order Resentencing to Time Served

      Upon receipt of the briefing and before the start of the resentencing hearing,

the district court issued a written order on January 26, 2007 resentencing the



                                          7
Puches to time served (which was 66 months at that time).3 The district court’s

order noted that, pursuant to the Eleventh Circuit’s mandate, the district court was

instructed “to reconsider its sentence of the Defendants under an advisory

Sentencing Guidelines regime, as opposed to the mandatory regime.” The order

also stated that at the Puches’ original sentencing, it had expressed its “deep

dissatisfaction” with imposing a sentence within the guidelines range and its

opinion that the guidelines “in this instance are quite harsh.” The district court’s

order again observed that post-Booker the guidelines are advisory and that the

court, after considering the guidelines range, “is permitted to tailor a sentence in

light of other statutory concerns, such as relevant individual circumstances.”

       The district court’s order listed the § 3553(a) factors. It then noted that this

Court had held that post-sentence rehabilitative conduct was an impermissible

factor to consider at sentencing, but recognized here “other factors warranting a

downward departure from the recommended Guidelines range.” The district court

found these factors warranted a lesser sentence: (1) there was no violence

connected with the Puches’ offense or any third-party victims; (2) the Puches’ had

“strong familial ties” and “an otherwise impressive support system comprised of

friends and family”; and (3) “because the Defendants’ amounts of loss were not


       3
        The government makes no claim of procedural error as to the order being entered before the
resentencing hearing.

                                                8
submitted to the jury, the use of such amounts violates the Sixth Amendment right

to a jury trial on all issues.” The district court pointed out that, in this case, the

Puches’ base offense levels were increased due to conduct found at sentencing that

was not determined by the jury.

       The district court stated that upon weighing the above relevant concerns, the

defendants should be resentenced to time served, as follows:

              Upon weighing all of the relevant concerns, the Court has
       concluded that without regard to the ultimate calculation of the
       sentencing guidelines, i.e., whether the Court accepts the
       government’s proposed calculation or that of the defendant or some
       middle ground, the ultimate sentence that this Court would impose
       would be the same. Thus, under Fed. R. Crim. P. 32(i)(3)(B), the
       Court need not undertake the resolution of the disputed sentencing
       factors in the presentence report, because the ultimate sentence would
       be identical in any event, even under the calculations presently
       contained in the presentence report. To the extent that a calculation of
       the guidelines is required, the Court will proceed with the acceptance
       of the guideline range as determined by the probation officer.

             The Court concludes that, after considering the factors
       enumerated in Title 18 U.S.C. § 3553(a), the Defendants should be re-
       sentenced to a sentence that is no “greater than necessary” to comply
       with the comprehensive statutory factors. The Court will therefore
       impose a sentence of TIME SERVED.

Accordingly, the district court ordered that the Puches’ be released from custody.

E.     Resentencing Hearing

       At the start of the resentencing hearing on January 26, 2007, the district

court indicated that the parties had already been provided with copies of its above-

                                             9
described resentencing order. The district court stated that because the court

preferred “substance over form,” it would be a “relatively short” resentencing

hearing. The district court reiterated that it had commented on many occasions in

the past about “the harshness of the punishment imposed” and that those matters

had been addressed in its order.

      The district court then formally sentenced the Puches to time served and

three years’ supervised release, but noted that it would “favorably consider” a

motion to terminate the final year of supervised release if the Puches successfully

completed the first two years. The sentences of time served (which was 66

months) were a downward variance from Orlando Puche’s advisory guidelines

range of 135 to 168 months’ imprisonment and from Enrique and Mauricio

Puche’s advisory guidelines ranges of 108 to 135 months’ imprisonment.

      The district court inquired if the Puches objected to their sentences, and they

said they did not. The district court did not make the same inquiry of the

government before adjourning the hearing.

                                   II. DISCUSSION

A.    Sentencing Post-Gall

      After the Supreme Court’s decisions in Booker and Gall v. United States,

552 U.S. __, 128 S. Ct. 586 (2007), the district courts are still required to correctly



                                           10
calculate the advisory guidelines range. See United States v. Pugh, 515 F.3d 1179,

1189 (11th Cir. 2008). If the district court decides that a sentence outside of the

guidelines is warranted, it “‘must consider the extent of the deviation and ensure

that the justification is sufficiently compelling to support the degree of the

variance.’” Id. at 1190 (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597) (emphasis

omitted).

      Gall emphasized that “while the extent of the difference between a particular

sentence and the recommended Guidelines range is surely relevant, courts of

appeals must review all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.”

Id. at 1189 (quoting Gall, 552 U.S. at __, 128 S. Ct. at 591).

      Under Gall, we must engage in a two-step process of sentencing review. See

id. at 1190. First, we must “‘ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence-including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall, 552 U.S. at __, 128 S. Ct.

at 597).



                                           11
      Second, we must consider the “‘substantive reasonableness of the sentence

imposed, under an abuse-of-discretion standard,’” taking into account the “‘totality

of the circumstances.’” Id. (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597). In

considering the substantive reasonableness of the sentence, we may “‘not apply a

presumption of unreasonableness’” where a sentence is outside of the Guidelines

range, and we “‘must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.’” Id. (quoting

Gall, 552 U.S. at __, 128 S. Ct. at 597).

      A sentence may be substantive unreasonable “‘when the district court selects

the sentence arbitrarily, bases the sentence on impermissible factors [or] fails to

consider pertinent section 3553(a) factors.’” Id. at 1192 (quotation marks omitted)

(emphasis added). If such an error exists, we will vacate the sentence and remand,

unless the error was harmless. See United States v. Keene, 470 F.3d 1347, 1349

(11th Cir. 2006). A district court’s consideration of an impermissible factor at

sentencing is harmless if the record as a whole shows the error did not substantially

affect the district court’s selection of the sentence imposed. See United States v.

Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005).

      We now apply the two-step appellate review process outlined in Gall to the

Puches’ sentences of time served.



                                            12
B.    The Puches’ Time-Served Sentences

      As to the first prong of the analysis outlined by Gall, we conclude that the

district court did not commit procedural error in sentencing the Puches. By

adopting the advisory guidelines ranges calculated in the presentence investigation

report, which were the same guidelines ranges that this Court instructed the district

court to consider on remand, the district court properly calculated the advisory

guidelines range. The district court stated that it had considered the advisory

guidelines range and the § 3553(a) factors, along with the pleadings filed by the

parties, in its sentencing decision. The district court then listed the § 3553(a)

factors, even though it was not required to do so. Finally, the district court

explained its reasons as to why a sentence of time served was sufficient, but not

greater than necessary to satisfy the § 3553(a) factors. In light of the above, we

conclude that there was no procedural error in the district court’s decision.

      As to the second prong of the analysis outlined in Gall, however, we

conclude that the Puches’ sentences are substantively unreasonable because the

district court based its Booker variance on a legally erroneous factor. See Pugh,

515 F.3d at 1192. The district court accepted the guidelines calculations by the

probation officer. However, in outlining the factors supporting the Booker

variance to a time-served sentence, the district court stated that the guidelines



                                           13
enhancement of the Puches’ base offense levels based on the amount of loss

violated their Sixth Amendment rights because the loss figure was not submitted to

the jury. This statement was incorrect because “‘the use of extra-verdict

enhancements in an advisory guidelines system is not unconstitutional.’” United

States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005) (quoting United States v.

Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)). In other words, enhancement

of the Puches’ sentences based on a loss figure that was not submitted to the jury

did not violate the Puches’ Sixth Amendment rights under Booker because the

district court was now resentencing the Puches’ under an advisory guidelines

scheme. See id. at 1324 (stating that a sentencing court could make fact findings

beyond those charged in the indictment “because it applied the guidelines in an

advisory way” and that “[n]othing in Booker is to the contrary”); Rodriguez, 398

F.3d at 1300 (stating, in reviewing a pre-Booker sentence, that “if the same

extra-verdict enhancements had been found and used in the same way in a

non-mandatory guidelines system the result would have been constitutionally

permissible”). Thus, the district court based the extent of its sentence variance on a

legally incorrect factor, i.e., a supposed Sixth Amendment violation that did not

exist.4


          4
        We reject the Puches’ argument that the government waived its objections to their
sentences.

                                           14
       Further, we cannot say that the district court’s consideration of this alleged

Sixth Amendment error in its Booker variance sentences was harmless. The

district court’s sentencing order does not indicate that it gave the alleged Sixth

Amendment error any less weight than the other factors listed as a basis for its

Booker variance. While the district court’s statements expressing “deep

dissatisfaction” with the guidelines range and its opinion that a guidelines sentence

was “quite harsh” strongly suggest that it would make some downward variance

from the advisory guidelines range, it is not clear that the district court would have

varied downward to the same extent if not for its misconception regarding the

Sixth Amendment violation.5 Therefore, because the record as a whole does not

show that the misconception about the alleged Sixth Amendment violation did not

substantially affect the district court’s decision to impose Booker variance

sentences of time served, we vacate the Puches’ sentences and remand to the

district court for the limited purpose of resentencing the Puches without

consideration of this factor.

       SENTENCES VACATED AND REMANDED WITH INSTRUCTIONS.

       5
          We recognize that the district court stated that it would impose the same sentences
regardless of the guidelines range. However, the district court’s order suggests that it would do so,
in part, because of its conclusion that there was a Sixth Amendment violation in the amount-of-loss
figure.
         Nothing herein suggests any opinion regarding the ultimate sentences imposed in this case.
We say only that the district court considered a legally incorrect factor in imposing the sentences
here.

                                                 15
BARKETT, Circuit Judge, DISSENTING:

      Based on this record, I would affirm the sentencing order imposed by the

district court. Although the structure of the sentencing order creates some

ambiguity, it does not clearly indicate that the district court partially based the

variance on the legally erroneous ground. Therefore, I see no reason to question

the district court’s statement that it would impose the same sentence in the case.

See United States v. Dean, 517 F.3d 1224, 1232 (11th Cir. 2008) (reiterating that

we will uphold the sentence imposed by the district court where the sentence is

reasonable and the district court states that it would impose the same sentence

irrespective of any sentencing calculation errors).




                                           16
