                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 05-11214                DECEMBER 21, 2005
                         Non-Argument Calendar             THOMAS K. KAHN
                                                               CLERK
                        ________________________

                     D. C. Docket No. 04-20467-CR-JEM

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                   versus

JOHNNY LEE MORRIS, JR.,

                                                          Defendant-Appellant.


                        ________________________

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

                             (December 21, 2005)

Before BIRCH, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

     Johnny Lee Morris was indicted along with three codefendants for
conspiracy to commit bank robbery, in violation of 18 U.S.C. §371 (Count 1), bank

robbery, in violation of 18 U.S.C. § 2113 (Count 2), and using and brandishing a

firearm in connection with another offense, in violation of 18 U.S.C. § 924(c)

(Count 3).1 Morris agreed to plead guilty to all three counts without a plea

agreement.

       At the change-of-plea hearing, the government made the following proffer:

Morris, Cedric Walker, and an unidentified man entered a bank in Florida. Morris

and Walker produced guns while the third person jumped the counter and removed

money from the drawers. Morris pointed his gun at the teller and bank customers

until the three men escaped. Morris was arrested and confessed that he was

recruited for the robbery and given the firearm.

       Morris entered his plea, admitting that he had pointed a gun in the direction

of the customers and tellers, but disputing that he had confessed. The court

accepted Morris’s plea.

       The probation officer prepared a presentence investigation report (“PSI”)

grouping Counts 1 and 2 together2 under U.S.S.G. § 3D1.2 and assigning a base

offense level of 20 under the guideline for armed robbery, U.S.S.G. § 2B3.1. The

       1
          The indictment also included two other counts, which involved only Morris’s
codefendants.
       2
       Count 3 was not included in the guidelines calculations because it carried a mandatory
minimum sentence that was required to run consecutively to the other counts.

                                             2
offense level was increased by 2 levels because the property taken belonged to a

financial institution, U.S.S.G. § 2B3.1(b)(1), and by another 2 levels because the

amount taken was greater than $50,000 but less than $250,000, U.S.S.G.

§ 2B3.1(b)(7)(C). The probation officer then included a three-level reduction for

acceptance of responsibility. With an total offense level of 21 and a criminal

history category III, Morris’s guidelines range for Counts 1 and 2 was 46 to 57

months imprisonment, to run consecutively to the 84-month (7-year) mandatory

minimum on Count 3.

      Morris objected to the PSI’s characterization that he brandished the firearm

when he entered the bank, asserting instead that he brandished the firearm after he

entered the bank. He noted that, although he had brandished the gun, he did not

fire any shots, there were no injuries during the robbery, and he had not threatened

any specific person with the firearm. Morris also moved for a downward departure

and he argued that the mandatory minimum sentence was more than adequate to

meet the sentencing goals set forth in 18 U.S.C. § 3553(a).

      At sentencing, the court denied the downward departure, finding that there

was no difference between brandishing a firearm and merely holding one during a

bank robbery. The court further stated that, although it would depart if given an

appropriate reason, there was no such reason in this case. The court indicated,



                                          3
however, that it would sentence Morris slightly, but not much, below the

guidelines range given that the offense was serious and required a substantial

sentence. According to the court, it could not simply let Morris off because the

statute and the guidelines were designed to give a range of punishment and there

was no compelling reason to go lower than that range. The government asserted

that a sentence below the range was inappropriate, and it proffered pictures

showing Morris pointing a firearm in the direction of a bank teller. After viewing

the pictures, the court decided not to sentence Morris below the guidelines range.

The court then adopted the PSI calculations and sentenced Morris to 46 months

imprisonment on Counts 1 and 2, to run consecutively to the 84-month mandatory

minimum sentence on Count 3. In imposing sentence, the court stated that it had

considered the factors set forth in § 3553(a), and that the guidelines range reflected

the seriousness of the offense and provided a just and reasonable punishment. The

court further stated that it was “constrained to render sentence which is within the

advisory guidelines range” due to the seriousness of the offenses and the need for

punishment. Morris had no objections to the sentence, but asked the court to

confirm that it had changed its mind about departing from the guidelines range.

      On appeal, Morris argues that the court erred by initially indicating that it

would depart but then changing its mind. He contends that the court was obligated



                                           4
to consider the guidelines as advisory only and that the factors in § 3553(a)

demonstrate that the seven-year mandatory minimum would have been more than

adequate to address the concerns in § 3553(a).

       After Booker, we review a defendant’s sentence for reasonableness.3

United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005); United States v.

Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). Additionally, after Booker this

court’s review of a district court’s decision not to depart downward remains

limited. Winingear, 422 F.3d at 1244. Accordingly, this court lacks jurisdiction to

review the denial of a downward departure unless it appears that the district court

mistakenly believed that it lacked authority to depart. Id.

       Here, there is nothing in the record that indicates the district court

mistakenly believed it lacked the authority to depart. Rather, the record reflects

that the court originally intended to depart but changed its mind after reviewing the

evidence. Although Morris argues that this change was improper, he offers no

support for this position. Moreover, the district court considered the facts of the

case in reaching its conclusion that a departure was not justified. Accordingly, we


       3
          Morris does not challenge the extra-verdict enhancements applied in his sentencing, but
in any event there was no error as he admitted the facts leading to the enhancements. United States
v. Burge, 407 F.3d 1183 (11th Cir. 2005). Notably, after Booker, the same extra-verdict
enhancements remain, and the district court considers the same factual evidence in applying the
enhancements as it would under a mandatory guidelines scheme. United States v. Williams, 408
F.3d 745 (11th Cir. 2005).

                                                5
lack jurisdiction to review the denial of a downward departure.

       Nevertheless, upon review, we conclude that Morris’s sentence is

reasonable. The court indicated that it had considered the § 3553(a) sentencing

factors and that the lengthy sentence was necessary given the seriousness of the

crime and the need for punishment. The court was not required to specify all of the

§ 3553(a) sentencing factors it considered in reaching a reasonable sentence.

United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005); United States v.

Robles, 408 F.3d 1324 (11th Cir. 2005).

       Here, Morris faced an 84-month mandatory minimum sentence that was

statutorily required to run consecutively to the sentence imposed on the remaining

counts.4 The district court sentenced Morris at the low end of the guidelines range

on the remaining counts after considering the § 3553(a) sentencing factors. Scott,

426 F.3d at 1329-30. Accordingly, we conclude that the sentence imposed was

reasonable, and we AFFIRM.




       4
         Although not raised by Morris, this court has held that § 5G1.2, which requires consecutive
sentences for certain offenses, remains binding after Booker. United States v. Magluta, 418 F.3d
1166 (11th Cir. 2005).

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