                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                      FILED
                          ________________________          U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  January 5, 2007
                                 No. 06-12421                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                         D. C. Docket No. 04-00054-CR-1

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

JAMES LARON KNIGHT,

                                                              Defendant-Appellant.
                           ________________________

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

                                (January 5, 2007)

Before BLACK, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      James Laron Knight appeals his conviction and 292-month sentence for

conspiracy to possess with intent to distribute more than 20 kilograms of cocaine,
in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). After review, we affirm.

                                   I. BACKGROUND

         The grand jury indicted Knight and a codefendant, Michael Lee, for

conspiracy to possess with intent to distribute “more than 20 kilograms of

cocaine,” in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). Under

§ 841(b)(1)(A), the maximum sentence for a drug conspiracy involving over 5

kilograms of cocaine is life imprisonment. Thus, the offense charged in Knight’s

indictment carried a statutory maximum of life. Knight pled not guilty and went to

trial.

         During the jury trial, several government witnesses testified that Knight

supplied cocaine and crack cocaine to individuals in Mobile, Alabama, between

1996 and 2001, often using his codefendant Lee to transport the drugs.1 For

example, Roderick Packer testified that he had purchased between 50 and 75

kilograms of cocaine from Knight, a lot of which Packer then converted to crack

cocaine, sometimes with Knight’s help. Three of Packer’s street dealers, Michael

Jefferson, Roderick Johnson and Paul Johnson, testified that Packer obtained his

drugs from Knight. Each witness recounted particular transactions in which


         1
        Knight was charged with possessing cocaine, that is, cocaine in powder form. However,
during the trial, evidence was presented that Knight also trafficked in cocaine base, commonly
known as crack. In this opinion, we refer to cocaine powder as cocaine and cocaine base as
crack cocaine.

                                              2
Knight supplied Packer with cocaine, which was then converted to crack cocaine.

Jefferson also testified that Knight once had Lee deliver two kilograms of crack

cocaine to Jefferson in Mobile.

      At the conclusion of the evidence, the district court gave the jury a special

verdict form. The district court instructed the jury that, if it found Knight guilty, it

should also find beyond a reasonable doubt the amount of cocaine and crack

cocaine that was the object of the conspiracy. The jury returned a guilty verdict,

finding that the conspiracy involved 50 kilograms of cocaine and 20 kilograms of

crack cocaine.

      The presentence investigation report (“PSI”) noted the jury’s findings

regarding the quantity of cocaine and crack cocaine. The guidelines assign a base

offense level of 36 for 50 kilograms of cocaine and a base offense level of 38 for

more than 1.5 kilograms of crack cocaine. See U.S.S.G. § 2D1.1(c)(1), (c)(2). The

PSI used the relevant conduct guideline, U.S.S.G. § 1B1.3, and assigned Knight a

base offense level of 38 based on the jury finding as to the crack cocaine. With a

total offense level of 38 and a criminal history category of III, Knight’s guidelines

range was 292 to 365 months.

      On November 23, 2004, the district court sentenced Knight to a 292-month

sentence under the then-mandatory guidelines scheme. Knight appealed, and this



                                            3
Court scheduled his case for oral argument. Prior to oral argument, however, the

parties jointly moved to remand for resentencing and for waiver of oral argument.

This Court granted the parties’ motion.

      On remand, the district court held a sentencing hearing on April 12, 2006.

Knight objected to the district court’s use of the jury’s findings regarding the crack

cocaine to calculate his guidelines range. Specifically, Knight argued that, because

these facts about the crack cocaine were not charged in his indictment, the jury’s

special verdict findings were an improper variance from the indictment. Knight

also argued that his original 292-month sentence was disparate from sentences

received by his co-conspirators.

      The district court overruled Knight’s objections, concluding that the jury’s

drug quantity findings were advisory and were consistent with the court’s own

recollection of the evidence at trial. The district court calculated Knight’s offense

level as 38 based on a drug quantity of more than 1.5 kilograms of crack cocaine.

See U.S.S.G. § 2D1.1(c)(1). With a total offense level of 38 and a criminal history

category of III, Knight’s advisory guidelines range was 292 to 365 months. The

district court also noted that, even with an offense level of 36 based on the cocaine

only, Knight’s guidelines range was 235 to 293 months and that the prior sentence

of 292 months is still within the guidelines range for cocaine alone.



                                           4
      Knight then addressed the district court, apologizing to his family and

friends. Knight asked the district court for a reduced sentence so that he could

return to his home and be a positive influence in his community. In response, the

district court noted the significant amount of cocaine involved in Knight’s offense

and the damage this amount of drugs had inflicted on Knight’s community. The

district court also stated that Knight was not a “small-time dope dealer” and that

Knight had not shown any remorse for his crime. The district court indicated that

it had considered the 18 U.S.C. § 3553(a) factors, as well as letters it had received

in support of Knight and determined that a guidelines sentence would be

reasonable and justified by all the facts and circumstances. The district court then

sentenced Knight to 292 months’ imprisonment. The district court stated that “the

sentence imposed addresses the seriousness of the offense and the sentencing

objectives of punishment, deterrence, and incapacitation.” This appeal followed.

                                 II. DISCUSSION

A.    Constructive Amendment

      Knight argues that the district court’s jury instructions relating to drug

quantities and types constructively amended the indictment. The Fifth Amendment

guarantees a defendant the right to be tried for only those offenses presented in an

indictment and returned by a grand jury. United States v. Cancelliere, 69 F.3d



                                           5
1116, 1121 (11th Cir. 1995). An impermissible amendment to an indictment

occurs “when the essential elements of the offense are altered to broaden the

possible bases for conviction beyond what is contained in the indictment.” Id.

(quotation marks omitted).

       “A jury instruction that constructively amends a grand jury indictment

constitutes per se reversible error because such an instruction violates a

defendant’s constitutional right to be tried on only those charges presented in a

grand jury indictment and creates the possibility that the defendant may have been

convicted on grounds not alleged in the indictment.” Id. However, where, as here,

the defendant raises the constructive amendment argument for the first time on

appeal, we review only for plain error. See United States v. Rutherford, 175 F.3d

899, 906 (11th Cir. 1999). Plain error is an “(1) error, (2) that is plain, and (3) that

affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir.) (quotation marks omitted), cert. denied, 545 U.S. 1127 (2005). If all three

conditions are met, we may exercise our discretion to recognize the forfeited error

if “(4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (quotation marks omitted).

       Knight complains that the district court twice constructively amended the

indictment. First, Knight argues that the district court amended the indictment



                                            6
when it instructed the jury that the government was required to prove only that “a

measurable amount of the controlled substance” was the object of the conspiracy

and that the jury could find Knight guilty even if it found that the conspiracy

involved a quantity of the controlled substance that was “less than the amount or

weight charged.” In other words, according to Knight, the district court’s jury

instructions changed the term “more than 20 kilograms of cocaine” charged in the

indictment to any measurable amount of a controlled substance. Second, Knight

contends that the district court amended the indictment when it instructed the jury

to find amounts for crack cocaine should it return a guilty verdict because the

indictment charged only cocaine.

      We need not address these issues because Knight has so clearly failed to

show that any alleged errors affected his substantial rights. Knight’s indictment

charged a drug quantity of “more than 20 kilograms of cocaine.” The government

presented evidence that Knight’s drug conspiracy involved amounts of cocaine

well in excess of 20 kilograms. Through the special verdict form, the jury found

beyond a reasonable doubt that Knight’s conspiracy involved 50 kilograms of

cocaine powder. In short, there is no doubt here that Knight was convicted of the

offense charged in the indictment.

      For this reason, Knight’s reliance on United States v. Narog, 372 F.3d 1243



                                          7
(11th Cir. 2004) is misplaced. First, Narog was a preserved-error case, meaning

that any impermissible amendment required reversal without a showing of

prejudice by the defendant. Id. at 1250. Second, under the facts and circumstances

of the trial in Narog, it was not possible to tell whether the jury’s verdict was based

on “a controlled substance other than the one specified” in the indictment. Id. at

1249.

        In contrast, the jury’s special verdict form in Knight’s case here makes it

clear that the jury’s verdict was completely consistent with the indictment. In any

event, Knight’s case is subject to only plain error review, and Knight clearly has

shown no effect on his substantial rights.

        The only alleged prejudice Knight points to with regard to the crack cocaine

is the guidelines calculation of his sentence. It is well-settled that the district court

may hold a defendant accountable for additional amounts of drugs involved in the

conspiracy, but not charged in the indictment, as relevant conduct. See United

States v. Ignancio Munio, 909 F.2d 436, 438-39 (11th Cir. 1990); U.S.S.G.

§ 1B1.3(a)(1) & cmt. n.2. Additionally, the district court may find these drug

amounts by a preponderance of the evidence at sentencing so long as the

defendant’s sentence does not exceed the statutory maximum authorized by the




                                             8
jury’s verdict.2 See United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.)

(affirming district court’s drug quantity finding based in part on even acquitted

conduct), cert. denied, __ U.S. __, 126 S. Ct. 432 (2005). Therefore, Knight

cannot demonstrate prejudice by pointing to the effect the amount of crack cocaine

had on his guidelines calculations. Because Knight has not shown that any error

affected his substantial rights, he has not met his burden to demonstrate plain error.

B.     Extra-verdict Enhancements

       Citing United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), Knight

also argues that the district court violated his Fifth and Sixth Amendment rights

when it enhanced his sentence based on drug quantities and type not alleged in the

indictment.3 The district court resentenced Knight under the advisory guidelines.

Knight’s 292-month sentence does not exceed his statutory maximum of life

imprisonment. Therefore, the district court’s findings relating to drug quantity and

       2
         As noted earlier, a § 841(a) drug offense that involved 5 kilograms or more of cocaine is
subject to a maximum life sentence. See 21 U.S.C. § 841(b)(1)(A). Therefore, Knight’s
statutory maximum sentence – life imprisonment – was authorized by the amount and type of
drugs charged in his indictment (more than 20 kilograms of cocaine) and found by the jury at
trial (50 kilograms of cocaine). If anything, the district court’s having the jury determine the
amount of crack cocaine used in the relevant conduct guidelines calculation afforded Knight
more process than was required.
       3
         The government argues that, because Knight failed to raise his Booker argument at the
resentencing hearing, we should review only for plain error. Knight argues that he is entitled to
de novo review because he raised the Booker issue in a position statement filed at the district
court’s instruction prior to the sentencing hearing. We need not resolve this issue because we
find no reversible error under either standard of review.


                                                9
type and the corresponding guidelines enhancements did not violate Knight’s Fifth

and Sixth Amendment rights. See United States v. Chau, 426 F.3d 1318, 1323-24

(11th Cir. 2005); Rodriguez, 398 F.3d at 1301.

C.    Reasonableness

      Finally, Knight argues that his 292-month sentence is unreasonable and

contends that the district court erred by not making particularized findings as to

each of the § 3553(a) factors.

      After Booker, a district court, in determining a reasonable sentence, must

consider the correctly calculated advisory guidelines range and the § 3553(a)

factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Although the

district court must consider the § 3553(a) 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. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

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

the § 3553(a) factors. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.

2006). This “[r]eview for reasonableness is deferential. . . . [a]nd when the district

court imposes a sentence within the advisory Guidelines range, we ordinarily will

expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. “[T]he party



                                            10
who challenges the sentence bears the burden of establishing that the sentence is

unreasonable in . . . light of both [the] record and the factors in section 3553(a).”

United States v. Bonilla, 463 F.3d 1176, 1180 (11th Cir. 2006) (quotation marks

omitted).

      After review, nothing in the record convinces us that Knight’s 292-month

sentence was unreasonable. The district court correctly calculated Knight’s

guidelines range as 292 to 365 months, and Knight’s sentence falls at the bottom of

that range. The district court indicated that it had considered the § 3553(a) factors.

Furthermore, although the district court was not required to do so, it discussed

several factors, including the characteristics of the defendant, the need for the

sentence to reflect the seriousness of the offense and to provide a just punishment

for the offense and the need for deterrence. Perhaps most significant to the district

court was the substantial amount of drugs Knight trafficked and Knight’s lack of

remorse. Under the facts and circumstances of this case, Knight has failed to show

that his 292-month sentence is unreasonable.

      AFFIRMED.




                                           11
