                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              SEPT 08, 2006
                                No. 06-11188                THOMAS K. KAHN
                            Non-Argument Calendar               CLERK
                          ________________________

                   D. C. Docket No. 03-00489-CR-T-17-MSS

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

GEZIM SELGJEKAJ,
a.k.a. Jimmy,

                                                           Defendant-Appellant.

                          ________________________

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

                              (September 8, 2006)

Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      This is Gezim Selgjekaj’s second appearance before the Court. Based on the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), as well
as the government’s concession “that it could not show beyond a reasonable doubt

that the district court’s error at sentencing . . . pursuant to a mandatory application

of the guidelines was harmless,” we previously vacated his sentence and remanded

for resentencing. See United States v. Selgjekaj, No. 04-16228 (11th Cir. Dec. 15,

2005) (“Selgjekaj I”) (unpublished order granting motion for vacatur). After a

resentencing hearing, at which the district court considered the parties’ arguments

and written submissions pertaining to the 18 U.S.C. § 3553(a) factors, the district

court imposed the same sentence, which was at the lowest end of the Guidelines

range Selgjekaj faced.    In this appeal, Selgjekaj again challenges his 41-month

sentence for conspiracy to traffic and trafficking in contraband cigarettes, in

violation of 18 U.S.C. §§ 371 and 2342. Selgjekaj asserts that the district court’s

imposition of sentence violated his Sixth Amendment rights and Booker because

the court increased his offense level after making an extra-verdict factual finding




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that the amount of loss was between $400,000 and $1,000,000.1 After careful

review, we affirm.

       We review sentences imposed under an advisory Guidelines system for

reasonableness. See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005);

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

court must follow a two-step process to determine a defendant’s sentence by (1)

consulting the Guidelines and correctly calculating the advisory range, and (2)

considering the factors under 18 U.S.C. § 3553(a).             Talley, 431 F.3d at 786. We

review a defendant’s ultimate sentence, in its entirety, for unreasonableness in light

of the factors in § 3553(a). See Winingear, 422 F.3d at 1245. When a district

court applies the Guidelines as advisory, nothing in Booker prohibits the district

court from making, under a preponderance-of-the-evidence standard, additional

factual findings that go beyond a defendant’s admission. United States v. Chau,

426 F.3d 1318, 1323-24 (11th Cir. 2005).



       1
            We are unpersuaded by Selgjekaj’s additional argument, that the district court
constructively amended the indictment when it instructed the jury concerning a scrivener’s error in
Count 17 of the indictment. Because neither the state in which the offense conduct took place nor
the state represented on the counterfeit cigarette stamps are essential elements of the charged
offense, see 18 U.S.C. § 2342(a), the original indictment put Selgjekaj on notice of the crime
charged, and the change did not provide a broader basis for conviction, we discern no constructive
amendment here. Cf. United States v. Castro, 89 F.3d 1443, 1452-53 (11th Cir. 1996) (holding that
constructive amendments alter or expand the essential elements of the offense contained in the
indictment, such that, the possible bases for conviction go beyond what is contained in the
indictment).

                                                3
      Section 2B1.1 of the Guidelines provides a base offense level of six for

crimes involving altered or counterfeit instruments, and includes an enhancement

based on the dollar value of the loss. See U.S.S.G. § 2B1.1(a)(2), (b). “Loss” is

defined as the greater of “actual loss” or “intended loss,” where the actual loss

includes “the reasonably foreseeable pecuniary harm that resulted from the

offense,” and intended loss “(I) means the pecuniary harm that was intended to

result from the offense; and (II) includes intended pecuniary harm that would have

been impossible or unlikely to occur.” U.S.S.G. § 2B1.1 comment. (n.3(A)(i), (ii)).

In calculating the amount of loss, the district court “need only make a reasonable

estimate of the loss.” U.S.S.G. § 2B1.1 comment. (n.3(C)).        For loss amounts

greater than $400,000 but $1,000,000 or less, the offense level is increased by 14

levels. U.S.S.G. § 2B1.1(b)(1).

      At the conclusion of Selgjekaj’s trial, the jury found him guilty on both

counts and, in response to special interrogatories, found that the value of the goods

for Count 2 -- the conspiracy -- was $5,000 or more. According to the presentence

investigation report (“PSI”), Selgjekaj conspired to traffic in 350 cases of

contraband cigarettes, which contained a total of 21,000 cartons at $27.64 per

carton. This gave the cigarettes a total wholesale value of $580,440. Based on this

amount, the PSI recommended enhancing Selgjekaj’s base offense level of 6 by 14



                                         4
levels, based on a loss amount of $580,440, which was between $400,000 and

$1,000,000. See U.S.S.G. § 2B1.1(b).2 With an adjusted offense level of 20 and a

criminal history category III, Selgjekaj faced a Guidelines imprisonment range of

41-51 months’ imprisonment. The district court imposed a 41-month sentence,

which was the sentence we vacated in Selgjekaj I.

       At the resentencing hearing, in imposing the same low-end sentence, the

district court stated the following:

              [T]he evidence that came out with regard to these activities was
       of a very serious nature. And there was a great deal of harm that
       resulted from it and the wrong type of impression, the types of
       dealings that people should have with one another.

              And I recall the testimony. I don’t have to read the transcript. I
       remember it. The Court felt at the time [of the original sentencing
       hearing] that it had considered everything that was appropriate with
       regard to Mr. Selgjekaj and gave him the opportunity without penalty
       to assert that he was not guilty and to go to trial. I didn’t sentence him
       at the top end of the guidelines. I sentenced him at the low end of the
       guidelines and made a determination, as you well know, under the
       verdict by the jury that he should not have an enhancement [for
       obstruction of justice]. And I disagreed with the government and
       disagreed with the position of the [PSI] because of what I perceived
       was an objection under Blakely, and honored the jury’s decision with
       regard to that. So he did get a reduction at that time.

             I think -- I thought that a reasonable and just and sufficient
       sentence was the 41 months, and I think that now with credit for time
       served.


       2
       The PSI also recommended a 2-level increase for obstruction of justice, pursuant to
U.S.S.G. § 3C1.1, which the district court did not adopt in imposing sentence.

                                               5
      ....

             The sentence is within the guideline range. That range does not
      exceed 24 months. The Court finds no reason to depart from the
      sentenced called for by the application of the guidelines. The Court
      finds the sentence to be reasonable and sufficient.

             And even though you did make a request for it, under
      3553(a)(1) through (7) of 18 U.S.C., the Court specifically finds that
      the sentence is reasonable, sufficient, and adequate.

We find it plain that the court treated the Guidelines range as advisory on

resentencing, and therefore, Booker did not preclude the court from making and

relying on the challenged fact findings. Chau, 426 F.3d at 1323 (holding that the

“use of extra-verdict enhancements in an advisory guidelines system is not

unconstitutional.” (quotation omitted)). It is now well-settled that a district court

may find facts not found by a jury or admitted by the defendant, and use them in

formulating a sentence, as long as it properly applies the Guidelines as advisory.

Id. at 1324.   In reviewing the record, the district court correctly applied the

Guidelines, considered them advisory, and imposed a reasonable sentence after

consideration of the factors in 18 U.S.C. § 3553(a). See Talley, 431 F.3d at 786.

Accordingly, we affirm Selgjekaj’s conviction and sentence.

      AFFIRMED.




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