                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-14035                   JULY 17, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                       ________________________

               D. C. Docket No. 04-00057-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

AUGUSTIN AVILA,
a.k.a. Tingo,

                                                   Defendant-Appellant.


                       ________________________

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

                              (July 17, 2006)


Before DUBINA, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Augustin Avila appeals his sentence imposed after pleading guilty to

possession with the intent to distribute 50 grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Avila asserts his sentence is

unreasonable because the district court refused to forego the application of the

career offender provision, U.S.S.G. § 4B1.1, by downwardly departing or

sentencing him outside of the advisory Guidelines range. He asserts the proper

base offense level was 32, based on his guilty plea to 250 pieces of crack cocaine,

rather than 34, as the presentence investigation report noted, or 37, as the court

found under the career offender provision. Avila further maintains that, post-

United States v. Booker, 125 S. Ct. 738 (2005), the advisory Guidelines do not

require the district court to apply the career offender provision. He asserts

application of the career offender provision was unwarranted because the offense

level under that provision over-represented his “actual culpability,” and, further,

his prior offenses were minor, especially considering the armed robbery occurred

more than 15 years ago. We conclude Avila’s sentence is reasonable, and affirm.

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

F.3d 784, 785 (11th Cir. 2006). “Review for reasonableness is deferential.” Id. at

788. Following Booker, in imposing a sentence, the district court must first

accurately calculate the defendant’s Guidelines range and second consider the



                                           2
§ 3553(a) factors to determine a reasonable sentence. Id. at 786. In determining

whether a sentence is reasonable, the district court should be guided by the factors

set forth in 18 U.S.C. § 3553(a). United States v. Winingear, 422 F.3d 1241, 1246

(11th Cir. 2005). Those factors include, inter alia, (1) the nature and

circumstances of the offense, (2) the history and characteristics of the defendant,

(3) the need for the sentence imposed to reflect the seriousness of the offense, to

afford adequate deterrence, and to protect the public from future crimes of the

defendant, and (4) the need to avoid unwarranted sentencing disparities among

defendants with similar histories who have committed similar conduct. 18 U.S.C.

§ 3553(a). However, “nothing in Booker or elsewhere requires the district court to

state on the record that it has explicitly considered each of the § 3553(a) factors or

to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005).

      A district court’s decision to classify a defendant as a career offender under

U.S.S.G. § 4B1.1 is reviewed de novo. United States v. Gibson, 434 F.3d 1234,

1243 (11th Cir. 2006). Booker “did not alter the standard by which we review the

district court’s interpretation and application of the Sentencing Guidelines . . . .”

Id.

      A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant

                                            3
      offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense; and
      (3) the defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). “[I]f the offense level for a career offender from the table in

[§ 4B1.1] is greater than the offense level otherwise applicable, the offense level

from the table in [§ 4B1.1] shall apply. A career offender’s criminal history

category in every case under this subsection shall be Category VI.” U.S.S.G.

§ 4B1.1(b). According to the table in § 4B1.1, if the statutory maximum for the

offense is life imprisonment, the base offense level is 37. U.S.S.G. § 4B1.1(b).

      With regard to the district court’s Guidelines range calculation, the court did

not err in determining Avila qualified as a career offender, which resulted in a base

offense level of 37 and a criminal history category of VI. Avila was convicted of

violating 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), a controlled substance offense.

See U.S.S.G. § 4B1.1(a). The mandatory maximum term of imprisonment under

Avila’s statute of conviction is life. See 21 U.S.C. § 841(b)(1)(A); see also

U.S.S.G. § 4B1.1(b). Avila had prior felony convictions for armed robbery and

aggravated battery with a deadly weapon. In fact, Avila admitted at sentencing

those prior convictions satisfied the requirements of the career offender provision.

See U.S.S.G. § 4B1.1(a). It is undisputed Avila was over 18 years’ old at the time




                                          4
he committed the instant offense. See id. Thus, the district court correctly

calculated Avila’s Guidelines range and applied the career offender provision.1

       With regard to the reasonableness of Avila’s sentence in light of the

§ 3553(a) factors, Avila argues the district court should not have applied the career

offender designation because it over-represented his criminal history, as his prior

offenses were minor and at least one occurred more than 15 years ago. Here, the

court carefully considered Avila’s criminal history and found that, “[w]ith that type

of a pattern, the [c]ourt really can’t find that his career offender designation . . .

significantly over represents his actual criminal activity and his actual convictions.

He’s established a pattern going back almost 20 years.” Furthermore, Avila does

not contend the district court failed entirely to consider the § 3553(a) factors. We

conclude the court’s application of the career offender provision did not over-

represent Avila’s criminal history.2

       1
          Nonetheless, Avila asserts the district court should not have applied the career offender
provision, but, instead, should have applied a base offense level of 32, as opposed to 34, because he
pled guilty to 250 pieces of crack cocaine. Because, as explained above, the district court did not
err in applying the career offender provision, Avila’s argument concerning an applicable base
offense level of 32 rather than 34 is moot. Moreover, to the extent Avila contends the district court
erred in failing to grant his request for a downward departure on the grounds his career offender
designation over-represented his criminal history, this Court is without jurisdiction to review that
finding because the district court understood its authority to make such a decision. See Winingear,
422 F.3d at 1245-46.
       2
          Avila also contends his sentence is unreasonable because the Guidelines support a 100 to
1 ratio between sentences for convictions involving crack cocaine and those involving powder
cocaine, which resulted in a disparity in Avila’s sentence. However, the 100 to 1 ratio does not
render a sentence unreasonable. The 100 to 1 ratio is mandated by Congress, contemplated by the

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       The district court correctly calculated Avila’s applicable Guidelines range,

and we agree with the district court that Avila’s 262-month sentence (at the bottom

of the applicable Guidelines range and below the statutory maximum of life) “is

sufficient, but not greater than necessary, to comply with the purposes of

sentencing as set forth in the statute, considering all the facts and circumstances of

the case, including the advisory guidelines.” We conclude Avila’s sentence is

reasonable.

       AFFIRMED.




Guidelines, and this Court has found it appropriate. See United States v. Byse, 28 F.3d 1165, 1171
n.9 (11th Cir. 1994); see also 21 U.S.C. § 841(b)(1)(A)(ii), (iii); U.S.S.G. § 2D1.1(c) (establishing
different penalties for offenses involving cocaine powder and cocaine base).

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