                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           JANUARY 18, 2007
                              No. 06-11556                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 05-20140-CR-CMA

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                   versus

JOHNNY LEWIS LAMB,

                                                       Defendant-Appellant.


                        ________________________

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

                             (January 18, 2007)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Johnny Lewis Lamb appeals his convictions and sentences for various
narcotics and firearms offenses on the grounds that (1) the district court abused its

discretion by failing to dismiss the indictment for pre-indictment delay; (2) the

post-indictment delay violated his right to a speedy trial under the Speedy Trial Act

and the Sixth Amendment; (3) the district court abused its discretion by allowing

the introduction of certain “extrinsic act” evidence; and (4) his sentence should be

vacated due to an erroneous career offender enhancement and because the sentence

is unreasonable. For the reasons that follow, we affirm.

                                I. BACKGROUND

      On March 2, 2000, based on tip from a confidential informant, Miami Dade

Police officers searched a Miami residence suspected of being used as a “stash

house” for narcotics. The search resulted in the seizure of, inter alia, fourteen

firearms, one kilogram of powder cocaine, two-and-one-half pounds of marijuana,

narcotics packaging, and scales. In the bedroom, officers found a receipt for

cellular phone service containing Lamb’s name, a picture of Lamb standing next to

a vehicle in front of the premises, a martial arts certificate bearing Lamb’s name

hanging on the wall, and thirty utility bills for the residence in Lamb’s name.

      On February of 2005, a federal grand jury in the Southern District of Florida

returned an indictment charging Lamb with various narcotics and firearms

offenses, and a warrant was issued for Lamb’s arrest. Specifically, the indictment



                                           2
charged Lamb with: possession of firearms by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (Count 1); possession with intent to distribute five hundred or

more grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii)

(Count 2); possession with intent to distribute less than fifty kilograms of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count 3); and

possession of firearms in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A)(I) (Count 4).

      On March 11, 2005, a notice was entered deeming Lamb a fugitive from

justice.1 On June 16, 2005, Lamb was arrested on the charges stemming from the

drugs and firearms seized in 2000. During the arrest, Lamb consented to a search

of his apartment. Prior to the search, Lamb alerted officers that marijuana and

cocaine could be found on his night stand, and, during the search, officers found

marijuana, powder cocaine, crack cocaine, elastics, plastic baggies, a razor blade,

and cutting agents.

      Lamb made his first appearance before a magistrate judge on June 17, 2005,

and on June 22, 2005, he was arraigned. On June 24, 2005, the district court

entered an order setting the trial date for the two-week period commencing on

August 8, 2005. On July 28, 2005, Lamb filed a motion to continue his trial on the



      1
          The record provides no insight into why Lamb was deemed a fugitive.

                                               3
charges stemming from the 2000 incident for thirty days. In an order filed on

August 3, 2005, the court granted the motion, and the trial was set to commence

during the two-week period beginning September 6, 2005.

      On August 30, 2005, a grand jury returned a superceding indictment adding

four additional counts based on the items found in Lamb’s residence on June 16,

2005. The superceding indictment added the following charges: possession with

intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B)(iii) (Count 5); possession with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count 6); possession

with intent to distribute less than fifty kilograms of marijuana, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count 7); and renting an apartment for

purposes of manufacturing, storing, distributing, and using controlled substances,

in violation of 21 U.S.C. § 856(a)(2) (Count 8). On September 2, 2005, a grand

jury returned a second superceding indictment amending Count 5 to charge an

offense involving less than five grams of crack cocaine.

      On September 12, 2005, Lamb filed a motion to dismiss the indictment due

to pre-indictment delay and to sever the counts pertaining to his 2000 conduct from

the counts pertaining to his 2005 conduct (if the dismissal was not granted). The

district court conducted a hearing on the motion on September 16, 2005. During



                                           4
the hearing, the Government told the court that if severance were granted, it wished

to try the 2000 case first. The Government also argued that evidence pertaining to

Lamb’s 2005 arrest should be admissible in a trial of the 2000 offenses under

Federal Rule of Evidence 404(b). Lamb’s counsel argued that the defense needed

additional time to locate witnesses and that he would be on leave during the next

several days. The court granted Lamb’s motion for severance, agreed with the

Government’s contention that evidence pertaining to Lamb’s 2005 arrest should be

admissible in a trial of the 2000 offenses, and denied Lamb’s request to dismiss the

indictment.

      In an order filed on September 21, 2005, the district court granted Lamb

another continuance, setting a trial date for the period beginning on October 31,

2005. On October 20, 2005, and November 22, 2005, Lamb made two additional

motions to continue the trial on the grounds that he needed more time to locate

defense witnesses. The district court granted both motions.

      Lamb’s trial commenced on December 13, 2005, and the jury found him

guilty on all four counts stemming from his 2000 conduct. After Lamb’s

conviction, he pleaded guilty, without a plea agreement, to Count 5 of the

superceding indictment (which charged him with possession with intent to

distribute crack cocaine on June 16, 2005) in exchange for the Government’s



                                          5
agreement to dismiss Counts 6, 7, and 8. Following a sentencing hearing, Lamb

was sentenced to 181 months imprisonment and six years of supervised release.

Lamb timely filed this appeal.

                          II. STANDARDS OF REVIEW

      A district court’s decision to deny a motion to dismiss an indictment for pre-

indictment delay is reviewed for abuse of discretion. United States v. Foxman, 87

F.3d 1220, 1222 (11th Cir. 1996). A district court’s evidentiary rulings are also

reviewed for abuse of discretion. Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358,

1360 (11th Cir. 2002).

      “Determination of whether a defendant’s constitutional right to a speedy trial

has been violated is a mixed question of law and fact. Questions of law are

reviewed de novo, and findings of fact are reviewed under the clearly erroneous

standard.” United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006)

(citations omitted). And under the Speedy Trial Act, we review conclusions of law

de novo, United States v. Brown, 285 F.3d 959, 961 (11th Cir. 2002), and the

district court’s factual determinations for clear error. United States v.

McCutcheon, 86 F.3d 187, 190 (11th Cir. 1996).

      We review a defendant’s ultimate sentence for reasonableness in light of the

factors set forth in 18 U.S.C. § 3553(a). United States v. Williams, 435 F.3d 1350,



                                           6
1353 (11th Cir. 2006).

       Errors raised for the first time on appeal, however, are reviewed for plain

error. United States v. Dowling, 403 F.3d 1242, 1249 (11th Cir. 2005).

                                      III. ANALYSIS

                                 A. Pre-indictment Delay

       Lamb argues that the approximately five-year delay between the crimes of

conviction and his indictment violated his due process rights and that the district

court abused its discretion in denying his motion to dismiss the indictment on this

basis.2 Although the limit on pre-indictment delay is usually set by the statute of

limitations, the Due Process Clause can bar an indictment even when the

indictment is brought within the limitation period. Foxman, 87 F.3d at 1222. “To

prove a due process violation resulting from a pre-indictment delay, [a defendant]

must show: (1) actual prejudice to [his] defense from the delay; and (2) that the

delay resulted from a deliberate design by the government to gain a tactical

advantage.” United States v. Thomas, 62 F.3d 1332, 1339 (11th Cir. 1995)

(emphasis added). This court has held that when the delay was the result of pure


       2
          To the extent Lamb argues that the pre-indictment delay, in and of itself, violated the
Speedy Trial Act and the Sixth Amendment’s guarantee of a speedy trial, his contention is
without merit. The protections of the Speedy Trial Act do not apply until formal federal charges
are pending, United States v. Sanchez, 722 F.2d 1501, 1509 (11th Cir. 1984), and the Sixth
Amendment right to a speedy trial does not arise until a defendant is accused or arrested. United
States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996).

                                                7
negligence on the part of the government, “the delay cannot be attributed toward

the government’s deliberate attempt to gain an advantage,” and thus, there is no

due process violation. United States v. Benson, 846 F.2d 1338, 1343 (11th Cir.

1988).

         Here, Lamb asserts that there is no evidence that the Government either

diligently pursued an indictment or engaged in an ongoing investigation during the

five years between March 2, 2000 (when the narcotics and firearms were found)

and February 18, 2005 (when he was initially indicted). He also argues that, at the

very least, remand is warranted to develop a more detailed record regarding the

Government’s reasons for the delayed indictment.

         The record is devoid of any evidence that the Government delayed in

indicting Lamb to gain a tactical advantage. Indeed, the only record evidence as to

the reasons for the delay arises from the hearing on Lamb’s motion to dismiss,

wherein the prosecutor asserted that a “small part” of the delay was produced by

the Government’s efforts to find witnesses and that the rest of the delay was due to

the Government’s negligence. Because Lamb failed to present evidence to the

contrary, we agree with the district court’s determination that the delay was not the

product of intentional government acts designed to obtain a tactical advantage.

Accordingly, we need not reach the question of whether the delay caused Lamb



                                           8
substantial prejudice. See Foxman, 87 F.3d at 1223 (“[S]ubstantial prejudice from

delay, standing alone, does not violate due process.”). Accordingly, we affirm the

district court’s denial of Lamb’s motion to dismiss for pre-indictment delay.

                              B. Post-indictment Delay

                              1. The Speedy Trial Act

      Lamb argues that the delay between his indictment and his trial violated his

right to a speedy trial under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. The

Speedy Trial Act provides that a defendant must be tried within seventy days from

the filing of his indictment or information, or from the date on which he made his

first appearance before the court. 18 U.S.C. § 3161(c)(1). If the defendant is not

tried within the seventy-day time limit, the court must dismiss the indictment. 18

U.S.C. § 3161(a)(2). “The defendant must request this relief, however, and

‘[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of

guilty or nolo contendere shall constitute a waiver of the right to dismissal under

this section.’” United States v. Register, 182 F.3d 820, 828 (11th Cir. 1999)

(quoting 18 U.S.C. § 3161(a)(2)). And this court has refused to hear claims based

on the Speedy Trial Act that were not raised in the district court. See e.g., id. at

828; United States v. Stitzer, 785 F.2d 1506, 1520 (11th Cir. 1986); United States

v. Tenorio-Angel, 756 F.2d 1505, 1508 (11th Cir. 1985).



                                            9
      Here, Lamb never moved for dismissal under the Speedy Trial Act, and he

never made a formal demand for a speedy trial. Thus, we conclude that Lamb has

waived his right to the sanction of dismissal under the Act, and we need not reach

the issue of whether a violation of the Act occurred.

                   2. Sixth Amendment Right to a Speedy Trial

      Lamb also argues that the post-indictment delay violated his Sixth

Amendment right to a speedy trial. Because Lamb raises this constitutional claim

for the first time on appeal, we review it for plain error only. United States v.

Hayes, 40 F.3d 362, 364 (11th Cir. 1994).

      The Supreme Court has established a four-factor test (the “Barker factors”)

to determine whether a defendant has been deprived of his constitutional right to a

speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of the right; and (4) the actual prejudice to the defendant.

Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2182, 33 L.Ed.2d 101 (1972).

The first factor serves a triggering function; unless the length of the delay is

presumptively prejudicial, we need not consider the remaining factors. Register,

182 F.3d at 827. A delay is considered “presumptively prejudicial” as it

approaches one year. United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003)

(citations omitted). “If, after the threshold inquiry is satisfied and the second and



                                           10
third factor are considered, all three of these factors weigh heavily against the

Government, the defendant need not show actual prejudice (the fourth factor) to

succeed in showing a violation of his right to a speedy trial.” Ingram, 446 F.3d at

1336 (citation omitted).

       In determining whether a delay is presumptively prejudicial, this court has

measured the length of the delay from the date of indictment to the date of trial.

See, e.g., id. at 1336-37; Dunn, 345 F.3d at 1296; United States v. Schlei, 122 F.3d

944, 987 (11th Cir. 1997); United States v. Twitty, 107 F.3d 1482, 1490 (11th Cir.

1997); Hayes, 40 F.3d at 365. Here, Lamb was initially indicted for the 2000

incident on February 18, 2005. His trial commenced on December 13, 2005. This

delay of ten months was approaching one year and, thus, was arguably

“presumptively prejudicial.” See Dunn, 345 F.3d at 1296. Accordingly, we

proceed to consider the remaining Barker factors.

       As for the second factor, the reason for the delay, the record is unclear. For

example, the record provides no insight into the reasons for the delay between

Lamb’s initial indictment on February 18, 2005 and his arrest on June 17, 2005.3



       3
         Nothing in the record explains why Lamb was deemed a fugitive on March 11, 2005, or
why Lamb was not arrested until June 17, 2005. Indeed, Lamb asserts that throughout the pre-
and post-indictment period, he continued to live in the vicinity of the address where the drugs
and firearms were seized in 2000, and he claims he had worked at the local Humane Society
since 2001.

                                              11
Yet the record does establish that Lamb’s multiple requests for continuances

produced the delay between his arrest and his trial. Although his trial date was

initially set for the two-week period commencing on August 8, 2005, Lamb moved

for, and was granted, four continuances. Nonetheless, the record also shows that

Lamb requested those continuances in order to obtain more time to locate defense

witnesses—time he likely would not have needed absent the five-year pre-

indictment delay, for which, as discussed above, he was not at fault. Thus, the

second Barker factor arguably weighs against the Government.

      As for the third Barker factor, Lamb did not move to dismiss the indictment

on constitutional speedy trial grounds, and he did not make a demand for a speedy

trial. Thus, the third Barker factor does not weigh against the Government.

      Because the first three Barker factors do not uniformly weigh heavily against

the Government, Lamb must demonstrate actual prejudice from the delay, “which

he may do in one of three ways: (1) oppressive pretrial incarceration, (2) anxiety

and concern of the accused, and (3) possibility that the accused’s defense will be

impaired.” Dunn, 345 F.3d at 1296 (citations omitted).

      During the hearing on Lamb’s motion to dismiss for pre-indictment delay,

the district court determined that based on evidence of Lamb’s unsuccessful efforts

to locate defense witnesses, the five-year pre-indictment delay caused actual



                                         12
prejudice to his defense. Thus, Lamb contends that the ten-month post-indictment

delay coupled with the approximately five-year pre-indictment delay caused him

actual prejudice by impairing his defense. The Government counters that the pre-

indictment delay is wholly irrelevant to the speedy trial analysis.

       Although “[o]nly pretrial delay following a person’s arrest, charge, or

indictment is relevant to whether the Speedy Trial Clause of the Sixth Amendment

is triggered[,] . . . . once the Sixth Amendment’s speedy trial analysis is triggered,

it is appropriate to consider inordinate pre-indictment delay in determining how

heavily post-indictment delay weighs against the Government.” Ingram, 446 F.3d

at 1339 (citations omitted) (emphasis added). “Thus, the [ten-month]

post-indictment delay in this case weighs more heavily than a [ten-month] delay in

another case might if, in that case, the post-indictment delay began shortly after the

allegedly criminal acts occurred.” Id. But it does not follow that we analytically

transfer the actual prejudice, in toto, from the pre-indictment delay to the post-

indictment delay in our assessment of the fourth Barker factor.

       Here, there is no evidence that the ten-month post-indictment delay, in and

of itself, actually prejudiced Lamb.4 Indeed, as discussed above, much of the post-

indictment delay resulted from continuances granted, at Lamb’s request, to aid his


       4
         Lamb does not contend that the post-indictment delay, in and of itself, resulted in actual
prejudice.

                                                13
defense by giving him more time to locate defense witnesses. Thus, even weighing

the post-indictment delay more heavily against the Government than we otherwise

would in the absence of the pre-indictment delay, see id., we conclude that all four

Barker factors, considered as a whole, do not weigh sufficiently against the

Government to constitute a plain violation of the Sixth Amendment.

                     C. Admission of Evidence Under Rule 404(b)

       Lamb also argues that the district court erred in admitting extrinsic evidence

of “other crimes” under Federal Rule of Evidence 404(b). Subject to specific

exceptions, Rule 404(b) provides that extrinsic evidence of other crimes, wrongs,

or acts is not admissible to prove a defendant’s character in order to show action in

conformity therewith.5 At the outset, we note that the principles governing Rule

404(b) evidence “are the same whether the conduct occurs before or after the

offense charged.” United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995)

(citation omitted) (emphasis added); United States v. Jernigan, 341 F.3d 1273,



       5
         The rule provides:
       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident,
       provided that upon request by the accused the prosecution in a criminal case shall
       provide reasonable notice in advance of trial, . . . of the general nature of any such
       evidence it intends to introduce at trial.
Fed. R. Evid. 404(b).


                                                 14
1283-84 (11th Cir. 2003) (“[T]he standard for evaluating the admissibility of a

subsequent bad act under Rule 404(b) is identical to that for determining whether a

prior bad act should be admitted under this Rule.” (emphasis added)). Thus, that

the pertinent conduct occurred after the crimes charged against Lamb in this case

does not change our analysis. Delgado, 56 F.3d at 1365.

      In evaluating the admissibility of 404(b) extrinsic evidence, this Court must

determine whether:

      (1) the evidence is relevant to an issue other than defendant’s

      character; (2) there is sufficient proof to enable a jury to find by a

      preponderance of the evidence that the defendant committed the

      extrinsic act; and (3) the evidence possesses probative value

      outweighing any prejudicial effect.

United States v. Clemons, 32 F.3d 1504, 1508 (11th Cir. 1994). Because Lamb

raises this claim of evidentiary error for the first time on appeal, however, “we

review it for plain error only.” United States v. Baker, 432 F.3d 1189, 1202 (11th

Cir. 2005) (citing Jernigan, 341 F.3d at 1280).

      At Lamb’s trial for the 2000 offenses, the Government introduced evidence

that during his June 16, 2005 arrest, inside his apartment, police found 5.4 grams

of marijuana, 2.7 grams of powder cocaine, 0.36 grams of crack cocaine, and an



                                          15
array of other paraphernalia indicative of drug distribution. Lamb argues that

because this evidence was seized approximately five years after the conduct for

which he was being tried, the evidence was irrelevant and unduly prejudicial. We

disagree.

      Regarding the first prong of the test, the Government argues that Lamb’s

possession of narcotics and distribution-related paraphernalia in 2005 was relevant

to whether he had the intent to distribute the cocaine and marijuana found in his

residence in 2000. We agree. “A defendant who enters a not guilty plea makes

intent a material issue which imposes a substantial burden on the government to

prove intent, which it may prove by qualifying Rule 404(b) evidence absent

affirmative steps by the defendant to remove intent as an issue.” United States v.

Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998). “Where the extrinsic offense is

offered to prove intent, its relevance is determined by comparing the defendant’s

state of mind in perpetrating both the extrinsic and charged offenses.” United

States v. Dorsey, 819 F.2d 1055, 1059 (11th Cir. 1987). Where the state of mind

required for the charged and extrinsic offenses is the same, the first prong of the

Rule 404(b) test is satisfied. Id.; United States v. Dickerson, 248 F.3d 1036, 1047

(11th Cir. 2001); Delgado, 56 F.3d at 1365.

      In this case, Lamb’s charged offenses include, inter alia, possession with



                                          16
intent to distribute marijuana and possession with intent to distribute cocaine in

2000. By pleading not guilty, Lamb made his intent a material issue. See Zapata,

139 F.3d at 1358. Lamb’s subsequent extrinsic conduct included his possession of

marijuana, cocaine, and distribution-related paraphernalia in 2005, resulting in

additional charges that Lamb possessed with the intent to distribute marijuana and

cocaine. Thus, the charged conduct and the subsequent extrinsic conduct involved

the same mental state—intent to distribute marijuana and cocaine. Accordingly,

the first prong of the analysis is satisfied.

       We also conclude that the second prong is satisfied. Here, the officer who

arrested Lamb in 2005 testified that after Lamb consented to a search of his

residence, he stated that marijuana and cocaine could be found on his night stand.

The officer also testified that upon searching the residence, he found marijuana,

cocaine, and distribution-related paraphernalia (e.g., plastic baggies, cutting agents,

razor blade, spoon) in the location Lamb described. Based on this testimony, a

jury could have found by a preponderance of the evidence that Lamb committed

the extrinsic conduct. See Clemons, 32 F.3d at1508.

       Regarding the third prong of the test, “[w]hether the probative value of Rule

404(b) evidence outweighs its prejudicial effect depends upon the circumstances of

the extrinsic offense.” Dorsey, 819 F.2d at 1062. Factors to be considered include



                                             17
whether it appeared at the commencement of trial that the defendant would contest

the issue of intent, the strength of the government’s case on the issue of intent, the

overall similarity of the charged and extrinsic offenses, and the temporal proximity

between the charged and extrinsic offenses. Id.

      Here, Lamb’s defense rested primarily on his contention that he was merely

present at the scene and that he never actually possessed or distributed the

narcotics found in 2000. Accordingly, the Government had a strong need for the

extrinsic offense evidence to counter Lamb’s “mere presence” defense and prove

his intent. See Delgado, 56 F.3d 1365. Furthermore, the charged offenses were

nearly identical to extrinsic offenses, as both involved possession with the intent to

distribute cocaine and marijuana. Moreover, this court’s case law contradicts

Lamb’s assertion that the five-year span between the charged conduct and the 2005

conduct rendered the 2005 conduct too remote to be admitted into evidence. See,

e.g., United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997) (concluding

that a six-year span did not render the extrinsic acts too remote for proper

consideration); United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995)

(concluding that a fifteen-year span did not render the extrinsic acts too remote for

proper consideration); United States v. Pollock, 926 F.2d 1044, 1048 (11th Cir.

1991) (concluding that a five-year span did not render the extrinsic conduct too



                                           18
remote for proper consideration). Finally, any unfair prejudice possibly caused by

admitting the extrinsic act evidence was mitigated by the district court’s limiting

instruction to the jury. See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225

(11th Cir. 1993). Thus, the probative value of extrinsic act evidence was not

substantially outweighed by its undue prejudice.

      Because all parts of the Rule 404(b) test are satisfied, we conclude that

evidence of the drugs and paraphernalia found in Lamb’s apartment during his

2005 arrest was properly admitted to prove his intent in the charged offenses.

                                    D. Sentence

      Finally, Lamb argues that his sentence should be vacated because the district

court erred by sentencing him as a career offender, failing to adequately consider

record facts that would have supported a lower sentence, and imposing an

unreasonable sentence. We disagree.

      Because Lamb raises these objections to his sentence for the first time on

appeal, we review them for plain error. United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir.), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 866

(2005).

      After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d

621 (2005), sentencing requires two steps. “First, the district court must consult



                                          19
the Guidelines,” which, “at a minimum, obliges the district court to calculate

correctly the sentencing range prescribed by the Guidelines.” United States v.

Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citations omitted). Second, the district

court must impose a sentence that is reasonable in light of the factors set forth in 18

U.S.C. § 3553(a). Id. These factors include: the nature and circumstances of the

offense, the history and characteristics of the defendant, the seriousness of the

offense, promoting respect for the law, providing just punishment for the offense,

affording adequate deterrence, the need to protect the public from further crimes of

the defendant, the Guidelines range; and the need to avoid unwarranted sentencing

disparities. 18 U.S.C. § 3553(a). “Although sentencing courts must be guided by

these factors, 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 the § 3553(a) factors.” United States v. Thomas, 446 F.3d 1348,

1357 (11th Cir. 2006) (citations omitted).

                           1. Details of Lamb’s Sentence

      In the presentence investigation report (“PSI”), Lamb was classified as a

career offender with a criminal history category of VI and a total offense level of

37, resulting in Guidelines range of 360 months to life imprisonment,with an

additional, consecutive, minimum term of five years (60 months) for Count 4



                                          20
(possession of a firearm in furtherance of a drug-trafficking offense). At a status

conference following Lamb’s conviction, the district court stated that based on

Lamb’s criminal history, it thought the Guidelines range was unreasonable. Noting

that the career offender classification was the result of felonies Lamb committed

when he was 17 and 18 years old, the district court stated “I think” a criminal

history category of III is more appropriate. The court went on to state “I think” an

offense category of 30 is more appropriate, and that this number was reached by

“disregarding” the career offender enhancement.

      At the sentencing hearing, the Government argued that if the court wanted to

impose a sentence below the Guidelines range, it should do so by imposing a

downward departure based on the factors set forth in § 3553(a). Stating that the

Guidelines range had been correctly calculated in the PSI, the district court

continued to express reservations about the reasonableness of a 420-month

sentence (the Guidelines minimum). Lamb argued that although the Guidelines

range was “technically” correct, the court should use its discretion to disregard the

career offender enhancement. After expressly noting that it had considered the

§ 3553(a) factors, and after discussing how several of those factors applied to

Lamb’s case, the district court sentenced to Lamb to a total of 181 months

imprisonment, consisting of 120 months as to each of Counts 1 and 3 to be served



                                          21
concurrently, 121 months as to each of Counts 2 and 5 to be served concurrently

with each other and concurrently with Counts 1 and 3, and 60 months as to Count 4

to be served consecutively to the terms imposed as to Counts 1, 2, 3, and 5.

                         2. Career Offender Enhancement

      Lamb contends that during the status conference, the district court had

“announced with definiteness” that it would disregard the career offender

enhancement included in the PSI. He argues that in failing to disregard the

enhancement, the district court erred by receding from its previously-announced

position, failing to consider that Lamb’s prior felonies occurred while he was a

teenager, and failing to consider Lamb’s “lengthy period of lawful and gainful

employment” during the preceding five years. We disagree.

      First, the transcript of the status conference reveals that the district court did

not announce with definiteness that it would disregard the career offender

enhancement. As discussed above, the district court stated “I think” a criminal

history category of III and an offense category of 30 (reached by disregarding the

enhancement) are more appropriate. In our view, this does not constitute a

definitive announcement that the court would disregard the enhancement.

      We are also unpersuaded by Lamb’s contention that the district court erred

in failing to consider Lamb’s age when he committed the prior felonies and his



                                           22
subsequent gainful employment. Again, after Booker, the district court must

correctly calculate the Guidelines range, and we review a defendant’s ultimate

sentence for reasonableness in light of the § 3553(a) factors. Talley, 431 F.3d 784,

786. But our reasonableness review does not apply to the application of individual

Guidelines, nor does it apply to “each individual decision made during the

sentencing process.” United States v. Winingear, 422 F.3d 1241, 1244-45 (11th

Cir. 2005). Here, Lamb does not argue that the career offender enhancement either

resulted from, or produced, an incorrect application of the Guidelines. And

because we do not review the reasonableness of an individual Guidelines

application, see id., Lamb’s arguments regarding the factors the district should

have considered in deciding whether to disregard the enhancement are addressed in

our discussion of whether Lamb’s ultimate sentence is reasonable. Accordingly,

we hold that the district court did not err in declining to disregard the career

offender enhancement.

                     3. Consideration of Lamb’s Rehabilitation

      Lamb also argues that his sentence should be reversed because the district

court focused “solely” on the nature and circumstances of the offense, while giving

“no consideration at all” to his personal “history and characteristics” such as his

steady and gainful employment. We disagree.



                                           23
      During the sentencing hearing, the district court specifically took note of

Lamb’s period of employment with the Humane Society. Indeed, the court read

excerpts from a letter written by Lamb’s supervisor describing Lamb as a well-

liked, courteous, caring, and hard-working employee. Noting the seriousness of

the charged offenses, however, the court went on to discuss the need for the

sentence to, inter alia, reflect the seriousness of the offenses, promote respect for

the law, provide just punishment, afford adequate deterrence, and protect the public

from future crimes by Lamb. Because “the weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district court,”

we will not substitute our judgment in weighing the relevant factors. United States

v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006). Accordingly, we reject Lamb’s

argument.

                         4. Reasonableness of the Sentence

      Finally, Lamb argues that the sentence was excessive “in total” and that the

individual sentences imposed on Counts 2, 3, 4, and 5 were unreasonable because

the district court made various “errors.” As a threshold matter, “[w]e do not apply

the reasonableness standard to each individual decision made during the sentencing

process; rather, we review the final sentence for reasonableness.” Winingear, 422

F.3d at 1245. “[W]e consider the final sentence, in its entirety, in light of the



                                           24
§ 3553(a) factors.” Thomas, 446 F.3d at 1350-51 (emphasis added); see e.g.,

United States v. Johnson, 451 F.3d 1239, 1241-42, 1244 (11th Cir.), cert. denied,

127 S.Ct. 462 (2006) (reviewing for reasonableness a 140-month final sentence;

not the reasonableness of the sentences imposed for each individual offense).

Accordingly, we review Lamb’s “final sentence” for reasonableness, and we

decline to evaluate each individual sentence imposed on Counts 2 through 5.

      Here, the district court adhered to the requirements of Booker in imposing

Lamb’s sentence. First, the court expressly considered, and properly calculated,

Lamb’s advisory Guidelines range. Notably, Lamb does not challenge the court’s

calculation of the Guidelines range. Second, the court specifically stated that it had

considered the § 3553(a) factors. And although a sentencing court need not

explicitly discuss each of the § 3553(a) factors, Thomas, 446 F.3d at 1357, in this

case, the district court discussed several, including Lamb’s history and

characteristics (including his youth at the time of his prior offenses and his lawful

employment with the Humane Society), see 18 U.S.C. § 3553(a)(1), the need for

the sentence to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, see id. § 3553(a)(2)(A), afford adequate deterrence, see

id. § 3553(a)(2)(B), protect the public from future crimes by Lamb, see id.

§ 3553(a)(2)(C), and the need to avoid unwarranted sentencing disparity among



                                          25
similarly-situated defendants, see id. § 3553(a)(6). On this record, we cannot say

that Lamb’s 181-month final sentence was unreasonable under Booker.

                               IV. CONCLUSION

      For the foregoing reasons, we AFFIRM.




                                         26
