                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          SEPTEMBER 18, 2007
                             No. 07-10985                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 04-00021-CR-001-3

UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee,

                                  versus

ULYSSES MCMILLAN,

                                                  Defendant-Appellant.


                       ________________________

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

                           (September 18, 2007)

Before TJOFLAT, CARNES and HULL, Circuit Judges.

PER CURIAM:
      Ulysses McMillan appeals his 144-month sentence for distributing cocaine

base in violation of 21 U.S.C. § 841(a)(1). McMillan was originally charged with

three distribution counts based on a first sale of 3.8 grams of cocaine base, a

second of 35.6 grams, and a third of 22 grams. He pleaded guilty to the third sale

in exchange for the charges relating to the first two being dismissed.

      The district court used the weight of all the sales, 61.4 grams, to calculate

McMillan’s offense level under the sentencing guidelines. Under U.S.S.G. §

2D1.1, crimes involving 50 grams or greater but less than 150 grams of cocaine

base result in a base offense level of 32. McMillan’s sentence was reduced by

three points for accepting responsibility, pursuant to U.S.S.G. §§ 3E1.1(a) & (b).

His adjusted offense level was therefore 29, which, coupled with a category IV

criminal history, carries a guideline range of 121 to 151 months. Considering the

advisory guidelines range and the other § 3553(a) factors, the district court

sentenced McMillan to 144 months.

      McMillan first contends that the court erred by including the weight of the

cocaine from the dismissed counts in its calculation under § 2D1.1 of the base

offense level because the government had not been proven those weights by a

preponderance of the evidence.




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      At McMillan’s plea hearing, Agent Steven Tensley of the Drug Enforcement

Agency testified that McMillan was involved in three controlled buys of cocaine

base in quantities totaling 61.4 grams. The plea agreement signed by McMillan

also acknowledged he had sold a total of 61.4 grams of cocaine base. Finally, the

district court summarized the agreement at the plea hearing, specifically

mentioning the “sixty-three or so grams of cocaine,” and McMillan stated that he

understood its terms. For these reasons, the district court’s finding of 61.4 grams

of cocaine base was supported by a preponderance of the evidence, and it was not

error to calculate his base offense using that quantity.

      McMillan also contends that the district court’s consideration of the drug

quantities from dismissed charges to set his base offense level without a finding by

a jury applying a beyond-a-reasonable-doubt standard violates the Fifth and Sixth

Amendments. McMillan acknowledges that this contention is contrary to this

Court’s previous rulings. See United States v. Duncan, 400 F.3d 1297, 1304 (11th

Cir. 2005) (“Booker does not suggest that the consideration of acquitted conduct

violates the Sixth Amendment as long as the judge does not impose a sentence that

exceeds what is authorized by the jury verdict.”); United States v. Rodriguez, 398

F.3d 1291, 1300 (11th Cir. 2005) (“The error . . . is not that there were

extra-verdict enhancements-enhancements based on facts found by the judge that


                                           3
were not admitted by the defendant or established by the jury verdict-that led to an

increase in the defendant's sentence.”). Furthermore, there is no Sixth Amendment

violation when the defendant admits to the facts in question, as McMillan did in his

plea agreement. See Blakely v. Washington, 542 U.S. 296, 303 (2004).

      McMillan’s final contention is that his sentence is unreasonable because the

court did not properly apply 18 U.S.C. § 3553(a). Specifically, McMillan argues

that the district court gave his criminal history too much weight in sentencing and

his work history not enough. McMillan emphasizes the following points: (1) one

of the convictions in his criminal history, for which he received only probation,

occurred almost 15 years before the distribution charge; (2) he had not been

charged with a felony in more than a decade before that distribution charge; and (3)

he held a job for a prolonged period before losing it due to an automobile injury.

      The district court explicitly considered these three factors in deciding the

sentence. “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court” and “[w]e will not

substitute our judgment in weighing the relevant factors.” United States v.

Williams, 456 F.3d 1353, 1363 (11th Cir. 2006) (citations omitted).

      McMillan also argues that the district court did not properly consider his

age, 51, as a mitigating factor in sentencing. The district court did not explicitly


                                           4
mention his age at any point during the sentencing proceeding. Even assuming

that being 51 years old is a mitigating factor, failure to mention a mitigating factor

does not mean that it has been ignored in sentencing. United States v. Amedeo,

487 F.3d 823, 833 (11th Cir. 2007). “[N]othing 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). The relevant inquiry is whether the

sentence is unreasonable in light of the particular circumstances of the case.

Amedeo, 487 F.3d at 833.

      “Review for reasonableness is deferential . . . and when the district court

imposes a sentence within the advisory [g]uidelines range, we ordinarily will

expect that choice to be a reasonable one.” United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005).

      Here, the sentence imposed by the district court is not unreasonable. As

discussed above, the district court correctly calculated McMillan’s guideline

imprisonment range and considered the guidelines as advisory. The court based its

decision to sentence McMillan within his guideline imprisonment range on his

“significant criminal history,” which, the court believed, demonstrated that he was

a typical offender. This is proper under the guidelines. 18 U.S.C. § 3553(a)(1).


                                            5
Moreover, the court imposed a sentence within the applicable guideline range,

which can ordinarily be expected to be reasonable. Talley, 431 F.3d at 788.

McMillan has failed to meet his burden of showing that the district court’s

sentence was not reasonable.

      AFFIRMED.




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