                                                          [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                November 9, 2005
                                 No. 05-10818
                                                              THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________

                     D. C. Docket No. 04-00145-CR-J-20MCR

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JACK LEE COGDELL,

                                                              Defendant-Appellant.

                           ________________________

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

                               (November 9, 2005)

Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      On June 2, 2004, a Middle District of Florida grand jury indicated appellant

for being a convicted felon in possession of a firearm and for possessing an
unregistered short-barreled shotgun, violation of 18 U.S.C. §§ 922(g), 924(a)(2),

and 26 U.S.C. §§ 5861(d), 5871, respectively. Following his arraignment,

appellant moved the district court to suppress physical evidence, including the

subject firearms. The court referred the motion to a magistrate judge, who held an

evidentiary hearing and issued a Report and Recommendation (“R&R”)

recommending that the motion be denied. The district court overruled appellant’s

objections to the R&R, adopted the R&R after reviewing the record, and denied the

motion.

       Appellant thereafter waived his right to a jury trial and the case was tried to

the bench. The court found appellant guilty and sentenced him to concurrent

prison terms of 54 months. He now appeals his convictions and sentences.

       Appellant challenges his convictions on the ground that the court erred in

denying his motion to suppress. We find no basis for vacating his convictions on

that ground. The facts the magistrate judge found following the evidentiary

hearing are not clearly erroneous, and his application of the law to those facts was

correct. We turn then to the validity of appellant’s sentences.

      Appellant challenges his sentences on two grounds. He contends first that the

district court, in determining the offense level for the subject offenses, committed

clear error in not giving him full credit under U.S.S.G. § 3E1.1 for accepting



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responsibility for his criminal conduct. Second, he argues that the court infringed

his Fourth Amendment right to be free of unreasonable searches and seizures by

requiring, as a condition of supervised release, that he submit to the DNA collection

mandated by 42 U.S.C. § 14135a. As appellant properly acknowledges, Padgett v.

Donald, 401 F.3d 1273 (11th Cir. 2005) (collection of DNA from prisoners does not

violate the Constitution) forecloses this argument. We consider only his first

contention.

      Under United States v. Booker, 543 U.S. ____, 125 S. Ct. 738, 767 (2005),

we review a defendant’s sentence, imposed after consulting the guidelines and

considering the factors set forth at 18 U.S.C. § 3553(a), for reasonableness. See

United States v. Winingear, No. 05-11198, slip op. at 3515 (11th Cir. Aug. 30,

2005) (“[a]fter the district court has accurately calculated the Guideline range, it

‘may impose a more severe or more lenient sentence’ that we review for

reasonableness.”) (citation omitted). Among the factors that a district court should

consider are the nature and circumstances of the offense, the history and

characteristics of the defendant, the need for adequate deterrence and protection of

the public, the pertinent Sentencing Commission policy statements, and the need to

avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7). The

court is not required, however, to “ state on the record that it has explicitly



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considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.”

United States v. Scott, No. 05-11843, manuscript op. at 11-12 (11th Cir. Sept. 27,

2005).

         In determining the offense level for the subject offenses, the court granted

appellant a two-level downward adjustment for acceptance of responsibility under

U.S.S.G. § 3E1.1(a). Section § 3E1.1(b) provides that a defendant may qualify for

an additional one-level reduction if, “upon motion of the government,” the

government attests that the defendant has assisted the authorities by timely

notifying the government of his intention to enter a plea. U.S.S.G. § 3E1.1(b)

(emphasis supplied). As the commentary says, however, “[b]ecause the

Government is in the best position to determine whether the defendant has assisted

authorities in a manner that avoids preparing for trial, an adjustment under

subsection (b) may only be granted upon a formal motion of the Government at the

time of sentencing.” U.S.S.G. § 3E1.1, comment. (n.6) citing Pub. L. 108-21

§ 401(g)(2)(B). Because the Government did not move the court to make the

subsection (b) adjustment, the court committed no error in refusing to do so.

         Moreover, the sentences in this case are not unreasonable. The court took

into consideration “the total facts that surround the offense,” including the fact that

“there were drugs that were found at the defendant’s residence at the time that the



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search was conducted.” In fact, the court indicated that it would have sentenced

appellant to 60 months’ imprisonment, exactly one-half the statutory maximum of

120 months, but reduced the term in light of the fact that appellant was in a county

jail where he was not afforded the “things that 3553 speaks about.” The court

considered the guidelines range, which it calculated at 41-51 months and, after

considering that range and the factors set forth at 18 U.S.C. § 3553(a), found that a

54-month sentence was “sufficient but not greater than necessary to comply” with

the purposes of § 3553(a). In short, the court’s pronouncement of a sentence three

months longer than the highest recommended guidelines sentence, and less than one

half the possible statutory maximum, was not unreasonable. See Winingear, slip

op. at 3516 (holding a defendant’s sentence reasonable because, inter alia, it was

one tenth of the statutory maximum of 20 years).

      AFFIRMED.




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