                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                APR 6, 2009
                               No. 08-14977                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                    D. C. Docket No. 07-80077-CR-DTKH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

BRANDON BEASLEY,

                                                             Defendant-Appellant.


                         ________________________

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

                                 (April 6, 2009)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     On March 7, 2008, appellant pled guilty to all three counts of an indictment,
which charged him in Count 1 with conspiracy to commit armed bank robbery of

the Washington Mutual Bank in Lake Worth, Florida, in violation of 18 U.S.C. §

371, in Count 2 with armed robbery of the Washington Mutual Bank, in violation

of 18U.S.C. § 2213(a) and (d), and in Count 3 with using, carrying, and

brandishing a firearm during and in relation to the offenses alleged in Counts 1 and

2, in violation of 18 U.S.C. § 924(a)(1)(A)(i) and (ii). On August 25, 2008, the

district court sentenced appellant on Counts 1 and 2 to concurrent prison terms of

60 and 96 months, respectively, and on Count 3 to a consecutive prison term of 84

months. Appellant now appeals his sentences.

      Appellant argues that the district court, in determining his sentence range

under the Guidelines, improperly considered as “relevant conduct” under U.S.S.G.

§ 1B1.3 three bank robberies he confessed that he previously committed but were

never the subject of a formal charge. The court erred in doing this, he says,

because those robberies were discrete, separate incidents that did not occur

“during the commission of the offense of conviction” and were not part of a

“common scheme or plan” within the meaning of § 1B1.3. Appellant also argues

that these uncharged robberies were not appropriate bases under 18 U.S.C. §

3553(a) for the court’s imposition of a variance from the Guidelines sentence range

because the “relevant conduct” limitation imposed by § 1B1.3 on robberies also



                                          2
limited the factors the court could consider in its § 3553(a) analysis. According to

appellant, one of the core purposes of § 3553(a), avoiding unwarranted sentencing

disparities, is served by excluding consideration of uncharged, non-relevant

conduct. Finally, he argues that the “mini trial” the court held at sentencing on

each of his prior, uncharged offenses violated his constitutional rights, because he

was not afforded a jury trial and the court, rather than a jury, made the final

decision of how much weight to afford his confession to the uncharged robberies.

      We review de novo constitutional challenges to a sentence. United States v.

Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). We also review de novo

“whether a factor considered by the district court in sentencing a defendant is

impermissible.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th

Cir. 2008).

      After Booker1 , we established a two-step process for district courts to use in

sentencing: first, the district court must consult the Sentencing Guidelines and

correctly calculate the sentencing range; second, the district court must consider

the factors listed in 18 U.S.C. § 3553(a) in arriving at a reasonable sentence.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The § 3553(a) factors

include: (1) the nature and circumstances of the offense and the history and



      1
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

                                                3
characteristics of the defendant; (2) the need to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the

offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need

to provide the defendant with needed educational or vocational training or medical

care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8)

pertinent policy statements of the Sentencing Commission; (9) the need to avoid

unwarranted sentencing disparities; and (10) the need to provide restitution to

victims. See 18 U.S.C. § 3553(a)(1)-(7). “[A] sentence based on an improper

factor fails to achieve the purposes of § 3553(a) and may be unreasonable[]

regardless of length.” United States v. Arevalo-Juarez, 464 F.3d 1246, 1249 (11th

Cir. 2006).

      Regarding the factors that may be considered in fashioning a reasonable

sentence, “[n]o limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the purpose of imposing an

appropriate sentence.” 18 U.S.C. § 3661. After Booker, “courts may still consider

relevant facts concerning a defendant’s background, character, and conduct” when

imposing a reasonable sentence. United States v. Faust, 456 F.3d 1342, 1348 (11th

Cir. 2006) (internal quotation omitted) (holding that “18 U.S.C. § 3661 . . . remains



                                           4
intact post-Booker”). With the foregoing principles in mind, we consider

appellant’s arguments.

      First, the record shows that, contrary to appellant’s argument, the district

court did not consider the uncharged robberies under § 1B1.3 to determine the

Guidelines sentence range; rather, the court considered the robberies under

§ 3553(a) in deciding to impose an upward variance. Second, § 1B1.3 did not limit

the court’s discretion to consider the robberies under §§ 3661 and 3553(a).

Finally, nothing in the Constitution or Supreme Court precedent precluded the

court from conducting the sentencing hearing as it did and finding that appellant

committed the uncharged robberies.

      Appellant’s sentences are, accordingly,

      AFFIRMED.




                                          5
