                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           December 22, 2005
                               No. 05-11637
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                      D. C. Docket No. 91-00870-CR-AJ


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

     versus

BIENVENIDO ROA,

                                                          Defendant-Appellant.


                         ________________________

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

                             (December 22, 2005)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

     After pleading guilty, Bienvenido Roa appeals his 89-month sentence for
conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C.

§§ 846 and 841(a)(1). After review, we affirm.

                         I. FACTUAL BACKGROUND

      A.     Roa’s Criminal Conduct

      In 1991, a confidential informant (“CI”) informed police that Ubaldo

Mazola, one of Roa’s codefendants, was interested in purchasing three to five

kilograms of cocaine. An undercover police officer met with Mazola at his

residence and was introduced to Defendant Roa. Roa warned the officer that there

were guests in the house and the exchange of cocaine was not to be discussed in

their presence. After agreeing on a price of $13,500 per kilogram of cocaine,

Mazola told the undercover officer that he was short on cash, but would trade his

two vehicles for two kilograms of cocaine. Mazola then offered his condominium

for an additional three kilograms. The officer agreed.

      Subsequently, the undercover officer, Mazola, Defendant Roa, and the CI

held several meetings to ensure the completion of the transaction. The officer met

with Mazola, Defendant Roa, and Jesus Delgado. They all drove to an apartment

used for undercover work, where they were joined by Victor Asencio. Mazola

explained that Delgado and Asencio would wait at a nearby story where they

would take delivery of the cocaine.



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      After Mazola and Defendant Roa inspected the five kilograms of cocaine,

Mazola instructed Defendant Roa and the CI to make the delivery. Defendant Roa

carried the cocaine to the vehicles, and all four parties headed to the store where

Delgado and Asencio were waiting. Mazola and Defendant Roa were taken into

custody at a gas station near the store. The CI delivered the cocaine to Delgado

and Asencio, and the two men were arrested shortly thereafter.

             B.     Roa’s Guilty Plea

      In December 1991, a federal grand jury indicted Roa, along with three

codefendants, charging him with: (1) conspiracy to possess with the intent to

distribute “a detectable amount of cocaine,” in violation of 21 U.S.C. §§ 846 and

841(a)(1) (Count 1); and (2) possession with the intent to distribute “a detectable

amount of cocaine,” in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count

2).

      In March 1992, Roa pled guilty to Count 1 pursuant to a written plea

agreement in which the government agreed to dismiss Count 2. The plea

agreement did not discuss the quantity of drugs involved. However, the agreement

stated that: “The Defendant understands and agrees that the court must impose a

statutory minimum term of ten (10) years and may impose a statutory maximum

term of imprisonment of up to life.” (emphasis added).



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      Roa, who was out on bond, did not appear for sentencing on May 12, 1992,

and a warrant was issued for his arrest. Roa was subsequently extradited from the

Dominican Republic and placed under arrest on November 18, 2004.

      C.     Sentencing

      At sentencing, the district court determined that Roa’s base offense level was

32, pursuant to U.S.S.G. § 2D1.1(c)(4), finding Roa responsible for at least 5 but

less than 15 kilograms of cocaine. The district court adjusted Roa’s offense level

to 30 based on a two-level reduction pursuant to § 5C1.2(a)(1)-(5) (safety-valve)

and § 2D1.1(b)(7), a two-level downward adjustment pursuant to § 3E1.1(a) for

acceptance of responsibility, and a two-level increase pursuant to § 3C1.1 because

Roa willfully obstructed justice during the course of sentencing by escaping to the

Dominican Republic and failing to appear to his initial sentencing hearing. Based

on a total offense level of 30 and a criminal history category of I, the district court

determined that Defendant Roa’s Guidelines range was 97-121 months’

imprisonment.

      Roa argued for a sentence below the advisory Guidelines range because of

his age, health, and the nature of the offense. Additionally, Roa argued that he had

already spent a total of 15 months in custody – four months in custody when he

was arrested in 1991, and several months in prison in the Dominican Republic



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while the government sought Roa’s extradition to the United States.

      The district court determined that it would sentence Roa based on the

advisory Guidelines range, which it thought was “sufficiently punitive to deter

future criminal conduct and to take into account all the factors set forth in Section

3553, Subsection A.” The district court sentenced Roa to 89 months’

imprisonment, which was below the low end of his Guidelines range of 97-121

months, in order to credit Roa with the amount of time that he spent in custody in

the Dominican Republic awaiting extradition. The district court further stated that

it “considered Mr. Roa’s medical condition, including his hypersensitive cardiac

illness and ventricular arrhythmia,” but did not find that “his health conditions

merit[ed] a sentence beyond that which is prescribed in the advisory Guidelines.”

The district court stated that it chose not to depart further from the Guidelines

range “in the exercise of [its] discretion,” and the district court did not believe a

lower sentence was “appropriate.”

      Directly after the district court imposed the 89-month sentence, Roa first

objected to the base offense level of 32, arguing that he should have had a base

offense level of 12. Roa pointed out that his indictment did not allege, and he did

not stipulate in his plea agreement, to the quantity of cocaine that resulted in a base

offense level of 32. The district court overruled his argument, stating that post-



                                            5
United States v. Booker, 125 S. Ct. 738 (2005), district courts may continue to

make fact findings under an advisory guidelines system, as follows:

      You know, the so-called Apprendi, Blakely, Booker objections are
      rejected based on binding Eleventh Circuit precedent following
      Booker, and I think the Eleventh Circuit has said that judges can
      continue to make factual findings in imposing a reasonable sentence
      and taking into account the advisory Guidelines.

Furthermore, as discussed more later, Roa filed a statement in support of his

safety-valve reduction, admitting that he participated in a conspiracy involving five

kilograms of cocaine.

                                 II. DISCUSSION

      On appeal, Roa argues the district court erred by increasing his sentence

based on facts that were not charged in the indictment and neither admitted by him

nor proven beyond a reasonable doubt. Specifically, he argues that because the

indictment charged him with intent to distribute a detectable amount of cocaine

and his plea agreement did not stipulate the quantity of drugs involved, the district

court was prohibited from increasing his base offense level based on its drug

quantity findings. Roa further argues that the district court erred in concluding that

Booker allowed for judicial fact finding so long as the sentencing guidelines were

applied in an advisory manner. Roa states that the district court “got confused”

with the remedy of treating the Guidelines as merely advisory, and that Blakely



                                          6
held that an enhanced sentence under the Guidelines, whether mandatory or not,

that is based on judicial fact-finding violates the Sixth Amendment.

      Under Booker, “the Sixth Amendment right to trial by jury is violated where

under a mandatory guidelines system a sentence is increased because of an

enhancement based on facts found by the judge that were neither admitted by the

defendant nor found by the jury.” United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005). The Supreme Court held that the mandatory nature of the

Federal Sentencing Guidelines rendered them incompatible with the Sixth

Amendment’s guarantee to the right to a jury trial. Booker, 125 S. Ct. at 749-52.

But, the Supreme Court also stated, “[i]f the Guidelines as currently written could

be read as merely advisory provisions that recommended, rather than required, the

selection of particular sentences in response to differing sets of facts, their use

would not implicate the Sixth Amendment.” Id. at 750.

      In a second and separate majority opinion in Booker, the Court concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of

1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.

§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)

and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de

novo review of departures from the applicable guideline range)—thereby



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effectively rendering the Sentencing Guidelines advisory. Id. at 764.

      In Rodriguez, this Court made it clear that the decisive factor that makes pre-

Booker sentencing problematic is not extra-verdict enhancements. 398 F.3d at

1301. Rather, Booker error is “that there were extra-verdict enhancements used in

a mandatory guidelines system.” Id. at 1300. This Court stated that “[e]xtra-

verdict sentence enhancements are still to be used. The change is the role of the

[U.S. Sentencing Guidelines Manual] range in the sentencing process.” Id. at

1302. And, this Court noted, all nine justices in Booker agreed that using “extra-

verdict enhancements in an advisory guidelines system is not unconstitutional.” Id.

at 1301.

      Here, the district court applied the Guidelines in an advisory manner. Thus,

the district court was permitted to determine the Guidelines range and then a

reasonable sentence based on judicially-found facts.

      In any event, Roa admitted to being involved in a conspiracy to distribute

five kilograms of cocaine. Specifically, Roa provided the district court with a

safety valve statement in which he admitted to being involved in a conspiracy

involving five kilograms of cocaine. In the statement, Roa wrote:

      In 1991 I was visiting the U.S. when I was contacted by
      Ubaldo Mazola who me to come to Miami. . . Mazola
      introduced me to a person I later learned when I was
      arrested, was an informant, to discuss the purchase of

                                     8
      cocaine. It was negotiated that Mazola would trade two cars
      and an apartment for five kilograms that were furnished by
      an undercover agent.

Thus, the district court properly imposed a sentence using the quantity of drugs

Roa admitted to be involved in his offense.

      For the above reasons, we affirm Roa’s 89-month sentence.

      AFFIRMED.




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