                                                          [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     JUNE 4, 2008
                                                  THOMAS K. KAHN
                            No. 07-14552
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket No. 02-00078-CR-FTM-29

UNITED STATES OF AMERICA,


                                               Plaintiff-Appellee,

                                  versus

JACK PENTZ,

                                               Defendant-Appellant.


                       ________________________

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

                              (June 4, 2008)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Jack Pentz appeals his sentence of 120 months’ imprisonment imposed

following his convictions for wire fraud, 18 U.S.C. § 1343, engaging in monetary

transactions in criminally derived property, 18 U.S.C. § 1957, and money

laundering, 18 U.S.C. § 1956. The 120-month sentence was imposed under the

advisory Guidelines after we vacated Pentz’s original 151-month sentence. See

United States v. Pentz, 202 F. App’x 411, 417 (11th Cir. 2006). Pentz asserts two

issues on appeal, which we address in turn.

                                          I.

      Pentz first asserts the remedial holding in United States v. Booker, 125 S. Ct.

738 (2005), and the application of the advisory Guidelines on resentencing

constituted an ex post facto violation because, at the time his crime was committed,

the “statutory maximum” was the high end of the then-mandatory Guidelines

without the application of any enhancements based on judge-found facts.

      “We review de novo a defendant’s claim that his sentence violated ex post

facto principles.” United States v. Amedeo, 487 F.3d 823, 831 (11th Cir.), cert.

denied, 128 S. Ct. 671 (2007) (quotations omitted). “[I]n Booker, the Supreme

Court held that its remedial holding, making the Guidelines advisory, was to be

applied to cases pending on direct review.” Id. We have held there is no ex post

facto violation in the retroactive application of Booker because “the law of this



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Circuit then recognized the U.S. Code as the source of the maximum sentence.”

Id. (quoting United States v. Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005)).

Thus, Pentz’s argument is meritless.

                                          II.

      Pentz next asserts his sentence is substantively unreasonable. He contends a

sentence at the low end of the Guidelines range would have been sufficient to meet

the statutory purposes of sentencing because: (1) his fraud began as a legitimate

business, but only degenerated into fraud in an effort to stay above water; (2) he is

unlikely to commit other crimes in the future; (3) the victim is likely to recover

most of his losses; (4) Pentz acknowledged at resentencing that he had made

significant errors in judgment; (5) a shorter sentence would enable him to more

quickly begin making restitution payments; and (6) one of Pentz’s co-defendants

received only 27 months’ imprisonment.

      We review a final sentence for reasonableness. United States v. Talley, 431

F.3d 784, 785 (11th Cir. 2005). In conducting this review, we apply a deferential

abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007).

We first review whether the district court committed a procedural error, such as

incorrectly calculating the Guidelines, treating the Guidelines as mandatory, failing




                                           3
to consider the § 3553(a) factors, imposing a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence. Id.

      If there were no such procedural errors, we “then consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.”

Id. This review involves inquiring whether the § 3553(a) factors support the

sentence. Id. at 600. The factors presented in § 3553(a) include

      (1) the nature and circumstances of the offense and the history and
      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 unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). Although we do not apply a

presumption of reasonableness to a sentence within the Guidelines range, where a

sentence is within the Guidelines range, we generally expect the sentence to be a

reasonable one. Id. at 788. A defendant challenging his sentence bears the burden

of establishing that it is unreasonable. Id.

      We begin by noting there were no procedural errors in Pentz’s sentence.

The district court correctly calculated Pentz’s Guidelines range, treated the

Guidelines as advisory, considered the § 3553(a) factors, and adequately explained

                                           4
the chosen sentence. See Gall, 128 S. Ct. at 597. Additionally, Pentz’s sentence is

substantively reasonable. Pentz merely argues the district court should have given

more weight to certain factors, but nothing in the record indicates the district court

abused its discretion in sentencing Pentz. In imposing sentence, the district court

stated even though Pentz had no prior criminal history, he engaged in a fraudulent

scheme that lasted a substantial period of time and defrauded a person of a

substantial amount of money, thus considering the nature and circumstances of the

offense and the history and characteristics of the defendant, and the need to reflect

the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense. We cannot conclude this within-Guidelines sentence,

imposed after consideration of the § 3553(a) factors, is unreasonable. See Talley,

431 F.3d at 788. The district court did not abuse its discretion in sentencing Pentz,

and we affirm Pentz’s sentence.

      AFFIRMED.




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