                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             JUNE 1, 2007
                              No. 06-14675                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                D. C. Docket No. 05-00082-CR-FTM-33-DNF

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                   versus

TIMOTHY LETORD HALES,
a.k.a. Mustafa,

                                                    Defendant-Appellant.


                        ________________________

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

                               (June 1, 2007)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Timothy Letord Hales appeals his sentence of 360 months
imprisonment for conspiracy to possess with intent to distribute 5 grams or more of

cocaine base, and possession with intent to distribute 5 grams or more of cocaine

base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), 846, and 851.

      On appeal, Hales argues that his sentence was unreasonable, and the district

court’s statement, that it did not feel that a “departure” from the guideline range

was appropriate, implied that the court treated the Sentencing Guidelines as

creating a presumptive sentence. This court reviews sentences for reasonableness.

United States v. Martin, 455 F.3d 1227, 1236 (11th Cir. 2006). This court has held

that, “[i]n reviewing the ultimate sentence imposed by the district court for

reasonableness, we consider the final sentence, in its entirety, in light of the

§ 3553(a) factors.” Id. at 1237. (internal quotation and citations omitted). The

§ 3553(a) factors include:

      (1) the nature and circumstances of the offense; (2) the history and
      characteristics of the defendant; (3) the need for the sentence imposed
      to reflect the seriousness of the offense, to promote respect for the
      law, and to provide just punishment; (4) the need to protect the public;
      and (5) the Guidelines range, as well as (6) the kinds of sentences
      available; (7) the need to avoid sentencing disparities among similar
      defendants who have been found guilty, and (8) the need to provide
      restitution to victims of the offense.

Id. at 1236 (internal quotations and citations omitted). However, we also have held

that the district court need not state on the record that it explicitly has considered

each factor and need not discuss each factor. United States v. Talley, 431 F.3d

                                            2
784, 786 (11th Cir. 2005). An acknowledgment by the district court that it has

considered the defendant’s arguments and the § 3553(a) factors will suffice. Id.

Furthermore, although a sentence within the Sentencing Guidelines range will not

be considered per se reasonable, the Guidelines remain central to the sentencing

process. Id. at 787. Therefore, ?when the district court imposes a sentence within

the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” Id. at 788.

      Because the district court imposed a low-end sentence after considering the

Sentencing Guidelines as advisory only, as well as considering Hales’s personal

characteristics and his need for rehabilitative treatment, we conclude that the court

did not impose an unreasonable sentence.

      Next, Hales argues that his designation as a career offender, based on two

prior felony drug convictions, violated his Sixth Amendment and due process

rights to have all facts relevant to sentencing be alleged and proven beyond a

reasonable doubt before a jury. In United States v. Gibson, 434 F.3d 1234, 1246

(11th Cir.), cert denied, 126 S. Ct. 2911 (2006), we held that the Fifth and Sixth

Amendments do not require that a defendant’s prior convictions be alleged in the

indictment or proven to a jury before they are used to designate the defendant as a

career offender. We noted that we are bound by Almendarez-Torres v. United


                                           3
States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), which held that

the indictment need not charge a sentence-enhancing factor if that factor was not

an element of the charged offense. Gibson, 434 F.3d at 1244-47.

       Because our precedent does not require that prior convictions used to

enhance a sentence be alleged in the indictment or proven to a jury, we hold that

the district court did not err by designating Hales a career offender based on his

two prior drug convictions. Accordingly, we affirm Hales’s sentence.

AFFIRMED.




                                          4
BARKETT, Circuit Judge, dissenting:

      I dissent because I believe that Timothy Letord Hales’ sentence of 360

months—30 years—imprisonment for conspiracy to possess with intent to

distribute 5 grams or more of cocaine base, and possession with intent to distribute

5 grams or more of cocaine base was unreasonable on this record.

      The record indicates that Hales was convicted of selling less than one ounce

of cocaine base. His sentencing enhancement to 30 years imprisonment is based on

two Florida felony convictions. The first offense dates back to April 1995, when

Hales was arrested, and a baggie containing 28 pieces of cocaine base fell from his

pants. He was sentenced to 15 months—a little over one year—imprisonment. The

second offense dates to May 1996, when Hales was pulled over by a highway

patrol trooper, who found 41 pieces of cocaine base. Hales was again sentenced to

a little over one year of imprisonment. These two offenses occurred approximately

ten years prior to the instant offense, and, as in this offense, involved relatively

small amounts of drugs. A 30 year sentence for these three offenses is

unreasonable.

      Moreover, the mitigating evidence here likewise supports a lesser sentence.

Hales suffered a traumatic childhood, resulting in part from a fire at his home that

killed his father and brother and left him severely burned. Hales has also suffered

                                            5
problems with drug and alcohol abuse and was hospitalized once after he attempted

suicide. Further, Hales was employed at the time of the instant offense and his

employer indicated that he was a good employee and would be considered for

rehire. As the district court noted, Hales is “somebody who certainly . . . has the

potential to succeed.” 1

       The Supreme Court ruled in United States v. Booker that we must review

sentencing decisions for unreasonableness. 543 U.S. 220, 264 (2005). Our review

for unreasonableness requires us to evaluate the sentence imposed in light of each

defendant’s individual circumstances, rather than simply rubber-stamping as

“reasonable” any sentence that falls within the guidelines range. Under 18 U.S.C. §

3553(a), a district court must impose a sentence “sufficient, but not greater than

necessary” to serve the purposes set forth in the statute, including the nature and




       1
          However, this conclusion is nowhere reflected in the 30 year sentence imposed upon
Hales. The district court did not give any reasons for its imposition of a thirty year term of
imprisonment. The court merely stated that it “impos[ed] the selected sentence . . . [because]
[t]he Court finds the sentence at the low end would not appear to undermine the statutory
purposes of sentencing.” I believe that more is required to justify a sentence—any
sentence—though particularly one when, as here, the defendant was sentenced to a lengthy term
of imprisonment, for a relatively minor crime, with a relatively minor criminal history and
compelling personal characteristics which explain, in part, his conduct. I worry that, in light of
current circuit precedent, a district court may be able to justify any length of imprisonment
merely by evoking the magic words —that the judge has considered the applicable guidelines,
the factors set forth in Section 3553(a), and the arguments of the defendant—that entitle the
district court to great deference and often preclude any meaningful review.

                                                 6
circumstances of the offense2 and the history and characteristics of the defendant,

among other things. A 30 year term of imprisonment for Hales does not meet the

requirements of Section 3553(a), and is clearly unreasonable.




       2
         This is especially so when one considers that if he had been convicted of commercial
bribery, with a criminal history category of 6 (for his two prior drug convictions), his sentence
under the guidelines would have been six to twelve months—or half-a-year to a year. U.S.
Sentencing Guidelines Manual §§ 2B4.1, 4A1.1, 5A. If he had bribed an elected public official, a
crime that reaches into the very heart of our government, his guideline sentencing range would
be a mere 33-41 months—a maximum of approximately three-and-a-half years. U.S. Sentencing
Guidelines Manual §§ 2C1.1, 4A1.1, 5A.

                                                7
