                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               November 8, 2006
                               No. 05-14451                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 02-60105-CR-WPD

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

CLIVE LANCELOT SMALL,
a.k.a. Olive Small,
a.k.a. Olive Enyahooma-El,

                                                           Defendant-Appellant.


                         ________________________

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

                             (November 8, 2006)

Before BARKETT, MARCUS and WILSON , Circuit Judges.

PER CURIAM:

     Clive Lancelot Small appeals his total 151-month sentence for:
(1) conspiracy to commit offenses against the United States, in violation of 18

U.S.C. § 371; (2) possession of machine guns, in violation of 18 U.S.C. § 922(o);

and (3) possession of firearm silencers, in violation of 26 U.S.C. §§ 5812, 5861(d).

On appeal, Small argues that, in light of United States v. Booker, 543 U.S. 220,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny, the district court violated

his Sixth and Fifth Amendment rights and committed statutory error by imposing

enhancements under U.S.S.G. §§ 2K2.1(b)(1)(C), 2K2.1(b)(5) and 3B1.1(c), and

sentencing him above the statutory maximum, which he defines as the maximum

sentence that may be imposed under the guidelines based on facts that were

reflected in the jury verdict, or admitted by him. Further, he argues that the

Sentencing Guidelines are at odds with the constitutional guarantee that each

defendant be tried by a jury and that every fact be found beyond a reasonable

doubt. Small agues that, because all of the enhancements increased his base

offense level, the district court unconstitutionally and unreasonably enhanced his

sentence through a “mandatory application” of the Sentencing Guidelines.

       We review a preserved Booker claim on appeal de novo, but reverse only

for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). In

Booker, the Supreme Court (1) held that sentence enhancements based solely on

judicial fact-finding pursuant to the mandatory Sentencing Guidelines violated the



                                          2
Sixth Amendment, and (2) excised the provisions of the Sentencing Reform Act

that made the guidelines mandatory -18 U.S.C. §§ 3553(b)(1) and 3742(e) -

thereby rendering the Sentencing Guidelines advisory only. Booker, 543 U.S.

at 233-35, 259-60, 125 S.Ct. at 749-51, 764. After Booker, the guideline range

now is advisory, but still an important factor that the sentencing court must

consider, along with the factors contained in § 3553(a). Id. at 258-60, 125 S.Ct. at

764-65.

      There are two types of Booker errors: (1) the Sixth Amendment

(“constitutional”) error of using judge-found facts to increase a defendant’s

sentence under a mandatory guideline system; and (2) the “statutory” error of

applying the guidelines as mandatory, as opposed to advisory. United States v.

Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). The use of extra-verdict

enhancements in an advisory guidelines scheme, however, is not unconstitutional.

United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.), cert. denied, 125

S.Ct. 2935 (2005). In United States v. Chau, 426 F.3d 1318, 1323 (11th Cir.

2005), we rejected a defendant’s argument that, under an advisory guidelines

scheme, the Sixth Amendment prohibits a sentencing court from finding facts

supporting extra-verdict enhancements. There, we found that a district court may

continue to determine enhancements under the guidelines based on a



                                          3
preponderance of the evidence standard, so long as the guidelines are applied in an

advisory fashion. Id. at 1323-24.

      Because the district court applied the guidelines in an advisory fashion, it did

not violate Booker or Small’s constitutional rights by imposing a sentence based in

part on judge-found facts supporting extra-verdict enhancements.

      Next, on appeal, Small argues that the district court unreasonably sentenced

him to the maximum advisory guideline sentence by not giving proper weight to

mitigating factors, such as his age, the fact that he required surgery, the fact that he

was deportable for the instant offense, and his lack of criminal history. He

contends that these factors indicate that a lengthy term of imprisonment was not

necessary to achieve the goals of retribution, deterrence, incapacitation and

rehabilitation. Specifically, he argues that: (1) the goals of retribution and

deterrence were satisfied by his advanced age, as it would be foolish for him again

to risk being jailed, where he likely would die; and (2) the goal of incapacitation

was satisfied because there was no need to protect the public from him, as he had

not set foot in the United States, and the weapons that he allegedly wanted were to

be used in Trinidad. Further, he argues that the court’s use of a 25-year-old

conviction, which was not scored as part of his criminal history, to increase his

sentence was not reasonable. He contends that the district court’s lack of in-depth



                                            4
reasoning or analysis indicated that the court did not do a “sufficient evaluation” of

the § 3553(a) factors, and that the district court gave the guidelines undue weight

in determining the reasonableness of his sentence.

      Pursuant to the Supreme Court’s instructions in Booker, we review a district

court’s sentence, imposed after consulting the guidelines and considering the

factors set forth at § 3553(a), for reasonableness. United States v. Williams, 435

F.3d 1350, 1353 (11th Cir. 2006).

      In sentencing a defendant, the factors that a district court must consider

include: (1) the nature and circumstances of the offense; (2) the history and

characteristics of the defendant; (3) the need for the sentence to reflect the

seriousness of the offense, promote respect for the law, afford adequate deterrence,

protect the public, and provide needed correctional treatment; (4) the applicable

guideline range; (5) the pertinent Sentencing Commission policy statements; and

(6) the need to avoid unwarranted sentencing disparities. See 18 U.S.C.

§ 3553(a)(1)-(7). “A district court need not, however, explicitly consider every

single § 3553(a) factor in order for the sentence to be reasonable.” See e.g.,

United States v. Scott, 426 F.3d 1324, 1330 (11th Cir.2005) (“We now . . . hold

that 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



                                           5
the § 3553(a) factors.”). A district court may determine on a case-by-case basis

what weight to give the guidelines, so long as its determination is made with

reference to the remaining § 3553(a) factors. United States v. Hunt, 459 F.3d

1180, 1185 (11th Cir. 2006). Moreover, “[r]eview for reasonableness is deferential

. . . and when the district court imposes a sentence within the advisory Guidelines

range, we ordinarily will expect that choice to be a reasonable one.” United States

v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      Upon review of the sentencing transcript and the presentence investigation

report, and upon consideration of the parties’ briefs, we find no reversible error

with respect to Small’s sentence.

      Because the imposition of Small’s sentence reflected consideration of

several of the relevant factors under § 3553(a), Small’s sentence was not

unreasonable. Accordingly, we affirm.

      AFFIRMED .




                                           6
