                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            MARCH 14, 2007
                              No. 06-10695                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 05-00344-CR-T-23-TBM

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                   versus

CARLOS HUMBERTO FAJARDO,

                                                       Defendant-Appellant.


                        ________________________

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

                              (March 14, 2007)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     After pleading guilty, Carlos Humberto Fajardo appeals his 168-month
sentence imposed for conspiring to possess with intent to distribute cocaine on a

vessel subject to United States jurisdiction, 46 App. U.S.C. §§ 1903(a), 1903(g),

1903(j); 21 U.S.C. § 960(b)(1)(B)(ii), and possessing with intent to distribute

cocaine on a vessel subject to United States jurisdiction, 46 App. U.S.C.

§§ 1903(a), 1903(g); 18 U.S.C. § 2; 21 U.S.C. § 960(b)(1)(B)(ii). After review, we

affirm.

                                I. BACKGROUND

      Fajardo was the captain of a “go-fast” boat that departed Columbia with

2,272 kilograms of cocaine and was spotted and boarded by the United States

Coast Guard. Fajardo pled guilty to the two offenses mentioned above.

      Fajardo’s presentence investigation report (“PSI”) recommended a base

offense level of 38, pursuant to U.S.S.G. § 2D1.1(c)(1), because his offenses

involved 150 kilograms or more of cocaine. The PSI also recommended a two-

level increase, pursuant to U.S.S.G. § 3B1.1(c), because Fajardo was the captain of

the vessel; a two-level “safety-valve” reduction, pursuant to U.S.S.G. §

2D1.1(b)(7); and a three-level reduction for acceptance of responsibility, pursuant

to U.S.S.G. § 3E1.1, resulting in a total offense level of 35. With a level 35 and a

criminal history category of I, the PSI recommended an advisory guidelines range

of 168 to 210 months’ imprisonment. Fajardo made no objections to the PSI’s



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guidelines calculations or to the facts of his offense conduct.1

       At the sentencing hearing, Fajardo argued for a sentence below the advisory

guidelines range, noting that he was a low-level operator, had no ownership

interest in the drugs, was impoverished and had undertaken the mission in order to

support his children. The district court noted that among the many Colombian

defendants sentenced, poverty was a uniform factor, but that the damage caused by

cocaine use in the United States could not be ignored. The district court noted the

significant amount of drugs involved and that, had the guidelines not capped the

base offense level at 150 kilograms of cocaine, Fajardo might have faced a much

higher imprisonment range, as follows:

       I think it is for our purposes here adequate to say that . . . at least one
       reasonable sentence is that one within the guidelines. I might point
       out that if my recollection is correct that the guidelines stop counting
       at 150 kilograms. Not that weight is the only factor, or even the most
       important one, but if you made some projections outward as to what a
       ton or two of cocaine might justify if 150 kilograms justifies what it
       justifies, Mr. Fajardo is not so bad off.

              I realize that is not the only or dispositive consideration, but, as
       I have said elsewhere again, I am not sure anybody actually – that
       Congress [in] enacting the statute, or the Sentencing Commission in
       promulgating its matrix, considered the punishment for a ton or two of
       high purity cocaine. It is probably fortunate for the defendant that
       they didn’t.



       1
         Fajardo’s only objection to the PSI was to the spelling of his father’s name. The PSI was
revised to reflect the proper spelling.

                                                3
            I am satisfied that the guidelines sentence here is responsive as
      any other sentence to the factors arrayed in 18 U.S.C. § 3553.

Fajardo argued that the Sentencing Commission had considered whether to add

higher offense levels for higher quantities of cocaine, had chosen not to and,

accordingly, the district court should not extrapolate in that direction. In response,

the district court stated that it was not extrapolating, would not extrapolate and that

“[i]t was quite much the point that [an extrapolation] was not forthcoming.” The

district court noted that there were many factors that would pull in both directions

in a case like this one and that the quantity of drugs was one that would pull

upward if applied, but that the district court was not applying it. As other factors,

the district court again noted both the need for Fajardo to support his children and

the effects of cocaine on children in the United States.

      Considering the advisory guidelines and the 18 U.S.C. § 3553(a) factors, the

district court sentenced Fajardo to 168 months’ imprisonment, at the low end of the

advisory guidelines range. Fajardo filed this appeal.

                                  II. DISCUSSION

      On appeal, Fajardo argues that his sentence is unreasonable because the

district court considered an impermissible factor, namely what Fajardo’s guidelines

range would have been had the Sentencing Commission included additional

offense levels for cocaine quantities above 150 kilograms.

                                           4
      After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district

court, in determining a reasonable sentence, must correctly calculate the advisory

guidelines range and then consider the factors set forth in 18 U.S.C. § 3553(a).

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).2 We review a

defendant’s ultimate sentence for reasonableness in light of the § 3553(a) factors.

United States v. Winnigear, 422 F.3d 1241, 1246 (11th Cir. 2005). “[A] sentence

can be unreasonable, regardless of length, if the district court’s selection of the

sentence was substantially affected by its consideration of impermissible factors.”

United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006) (footnote

omitted). “[T]he party challenging the sentence bears the initial burden of

establishing that the district court considered an impermissible factor at

sentencing.” Id.

      Fajardo fails to meet this initial burden. The district court did mention that

Fajardo could be considered fortunate because the highest offense level under the

guidelines was for 150 kilograms of cocaine, while Fajardo was responsible for

2,272 kilograms of cocaine. However, the severity of the offense is a permissible §

3553(a) factor. In any event, the district court stated explicitly that it was not

“extrapolating” from Fajardo’s excess drug quantity in arriving at Fajardo’s



      2
          On appeal, Fajardo does not challenge the district court’s guidelines calculations.

                                                  5
sentence. As the district court also noted, it is plainly evident that the district court

did not increase Fajardo’s sentence based on the excess cocaine involved in his

offense because Fajardo’s sentence was not only within, but at the low end of, the

advisory guidelines range. Therefore, the factor Fajardo claims is impermissible

and requires reversal in fact was not considered by the district court in determining

Fajardo’s sentence.

      Alternatively, Fajardo argues that, even if the district court did not consider

an impermissible factor, the length of his sentence is unreasonable. We review the

reasonableness of the length of a sentence “in light of the facts and circumstances

of the defendant’s case reflecting the sentencing considerations in § 3553(a).” Id.

at 1363. Because the weight accorded the § 3553(a) factors is committed to the

sound discretion of the district court, our review is deferential and we “will not

substitute our judgment in weighing the relevant factors . . . .” Id. Rather, “we

will remand for resentencing if we are left with the definite and firm conviction

that the district court committed a clear error of judgment in weighing the §

3553(a) factors by arriving at a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” Id.

      Here, we cannot say that Fajardo has shown that his 168-month sentence is

unreasonable. The district court noted that it had considered the § 3553(a) factors



                                            6
and the advisory guidelines range. The district court also considered Fajardo’s

arguments in mitigation, including his poverty, his family obligations and his role

in the conspiracy. On appeal, Fajardo emphasizes that his codefendants were

sentenced to lesser imprisonment terms. However, Fajardo is not similarly situated

to his codefendants because he was the captain of the go-fast boat. Under the facts

and circumstances presented, we are not left with the definite and firm conviction

that the district court committed a clear error of judgment in sentencing Fajardo to

a 168-month sentence, at the low end of the advisory guidelines range.

      AFFIRMED.




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