                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                      FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              September 2, 2005
                              No. 05-10432                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 04-00038-CR-4-RH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

KEITH DANIELS,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________
                             (September 2, 2005)


Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:
       Appellant Keith Daniels appeals his 135-month sentence for conspiracy to

distribute and possess with intent to distribute more than 5 kilograms of a mixture

containing cocaine and more than 50 grams of a mixture containing crack cocaine.

On appeal, he raises two main arguments based upon United States v. Booker, 543

U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Specifically, Daniels claims

that the district court imposed an unreasonable sentence (1) based upon

consideration of the factors enumerated at 18 U.S.C. § 3553(a), and (2) by failing

to consider the assistance he provided to law enforcement.1 Each argument is

discussed in turn.

                                               I.

       Under Booker, we review a defendant’s ultimate sentence for

“unreasonableness.” See Booker, 543 U.S. at ___, 125 S. Ct. at 765-66.

Sentencing courts are to consider the following factors, set forth at 18 U.S.C. §

3553(a), in determining sentences under the advisory Guidelines scheme:

              (1) the nature and circumstances of the offense and the
              history and characteristics of the defendant; (2) the need
              for the sentence imposed-- (A) to reflect the seriousness
              of the offense, to promote respect for the law, and to
              provide just punishment for the offense; (B) to afford


       1
         Daniels also argues that his sentence was unreasonable based upon the Sentencing
Guidelines’ disparate treatment of powder and crack cocaine offenses. This argument is
foreclosed by our precedent, and therefore, is without merit. See United States v. Hanna, 153
F.3d 1286, 1288-89 (11th Cir. 1998).

                                               2
             adequate deterrence to criminal conduct; (C) to protect
             the public from further crimes of the defendant; and
             (D) to provide the defendant with needed [treatment]; ...
             (4) the kinds of sentence and the sentencing range
             established for ... (B) in the case of a violation of
             probation or supervised release, the applicable guidelines
             or policy statements issued by the Sentencing
             Commission ...; (5) any pertinent policy statement – (A)
             issued by the Sentencing Commission.

18 U.S.C. § 3553(a); Booker, 125 S. Ct. at 765-66.

      We have clarified that sentencing courts must first correctly interpret and

apply the Guidelines to determine the appropriate advisory Guideline range. See

United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005).

      Because Daniels does not argue on appeal, and the record does not show,

that the district court erred in calculating his offense level under the Guidelines,

there is no error in this respect. See Id.

      The district court in this case purported to understand the requirement, in

light of Booker, that it apply the Guidelines in an advisory fashion. Although it

sentenced him within the Guideline range, it acknowledged that it was not required

to do so, but believed that Daniels’s unique circumstances warranted a sentence at

the low end of the Guideline range. In reaching that conclusion, the court

considered the nature and circumstances of Daniels’s cooperation with the

government, the nature of the offense, the drug involved, and “all of the



                                             3
circumstances” particular to him. It specifically noted that Daniels had been

involved in the “drug business” prior to the offense for which he was being

sentenced, and that he did not cooperate with the government prior to signing the

plea and cooperation agreement, but did cooperate afterward. The district court

expressly considered the factors set forth at § 3553(a),2 such that Daniels’s

sentence is not “unreasonable.” See Booker, 125 S. Ct. at 765-66; 18 U.S.C. §

3553(a). We, therefore, find no error in this respect.

                                                II.

       A district court may not depart pursuant to U.S.S.G. § 5K1.1 based upon a

defendant’s substantial assistance to the government absent a motion by the

government requesting departure on that basis. See Wade v. United States, 504

U.S. 181, 185, 112 S. Ct. 1840, 1843, 118 L. Ed. 2d 524 (1992); United States v.

Forney, 9 F.3d 1492, 1499 (11th Cir. 1993). Federal courts have authority to

review a prosecutor’s refusal to file a substantial assistance motion only if the

refusal was based upon an unconstitutional motive, such as racial or religious

discrimination. Wade, 504 U.S. at 185-86, 112 S. Ct. at 1843-44. The defendant

must make a “substantial showing” of an unconstitutional motive before having a



       2
         To the extent that the Sentencing Guidelines themselves take into account the factors set
forth at § 3553(a), the district court also implicitly considered them during the course of
calculating his applicable Guideline range.

                                                4
right to discovery or an evidentiary hearing. Wade, 504 U.S. at 186.

      In this case, the district court did not err by failing to depart on the basis of

Daniels’s assistance to the government because the government did not file a

motion to that end. See Id. at 185. Daniels does not allege - much less make a

“substantial showing” - that the refusal to file the motion was based upon a specific

unconstitutional motive. See id. at 185-86. Rather, he contends only that the

government’s failure to file that motion violated the plea and cooperation

agreement. In fact, the plea agreement specifically stated that the government

retained “sole discretion” to determine whether to file a substantial assistance

motion. Accordingly, this argument fails.

      Similarly, Daniels’s argument that the district court’s sentence was

unreasonable because it failed to consider the assistance he provided to the

government is also without merit. Specifically, the district court indicated that,

pursuant to Booker, it considered his cooperation in determining his sentence

although no substantial assistance motion was filed.

      Based upon the foregoing, we affirm Daniels’s sentence.

      AFFIRMED.




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