                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                October 3, 2005
                               No. 05-10832                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                  D. C. Docket No. 04-00047-CR-SPM-WCS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JAMES ALAN GARNER,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                           _____________________

                               (October 3, 2005)


Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Pursuant to a plea agreement, James Alan Garner pled guilty to five counts
of mail fraud in violation of 18 U.S.C. § 1341. After the acceptance of Garner’s

guilty plea–but before his sentencing hearing–the Supreme Court decided United

States v. Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Although

the presentence investigation report set the upper end of the applicable Sentencing

Guidelines range at 41 months, the district court noted the advisory nature of the

guidelines under Booker and, over the objection of Garner’s counsel, sentenced

Garner to 60 months’ imprisonment on each count, with the sentences to run

concurrently. Garner now appeals, arguing that (1) the sentences violated his due

process rights given the mandatory nature of the Guidelines at the time of his plea,

and (2) the sentences are unreasonable under Booker.1 We affirm the sentences

imposed by the district court.

       It is uncontroverted that Garner timely raised the foregoing arguments in the

district court and preserved them for appeal. Our review is therefore de novo,

though we will reverse only for harmful error. See United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005) (per curiam). Garner contends that the Due Process

Clause of the United States Constitution “limits the retroactive expansion of a

sentencing scheme that increases punishment” based on the ex post facto principle

of fair warning. See Rogers v. Tennessee, 532 U.S. 451, 457-62, 121 S. Ct. 1693,


       1
         Although the district court also ordered Garner to pay restitution and imposed certain
other penalties, only Garner’s term of imprisonment is at issue on appeal.

                                                2
149 L. Ed. 2d 697 (2001) (explaining that although Ex Post Facto Clause does not

itself apply to courts, due process forbids judicial infringement of the right to “fair

warning” that criminal conduct will give rise to certain penalties); United States v.

Duncan, 400 F.3d 1297, 1306-07 (11th Cir. 2005) (recognizing that Due Process

Clause “encompasses the ex post facto principle of fair warning”), petition for cert.

filed (July 20, 2005) (No. 05-5467) . Given the mandatory nature of the Guidelines

at the time of his plea, Garner contends, there was no fair warning that the district

court could sentence him to more than 41 months, other than on a basis for upward

departure under the Guidelines themselves. Although we previously rejected a fair

warning claim in Duncan, Garner argues that Duncan is distinguishable because

the life sentence imposed in that case was not merely identified by the applicable

statute, but indicated by the Guidelines themselves. See Duncan, 400 F.3d at 1307

(explaining that at the time Duncan committed his offense, both the United States

Code and the Guidelines informed him that he was subject to a sentence of life

imprisonment).

      Garner’s attempt to distinguish Duncan is unpersuasive: under Duncan, the

statutory maximum in effect at the time of Garner’s criminal conduct provided him

with sufficient fair warning for purposes of due process. See id. at 1308

(“Although mandatory Guidelines were in place, the law of this Circuit then



                                           3
recognized the U.S. Code as the source of the maximum sentence.”); United States

v. Dupas, 419 F.3d 916 (9th Cir. 2005) (“Like the defendant in Duncan, Defendant

had fair notice, when he committed his crime and entered his plea, that his sentence

could be based on a judicial determination of the amount of intended loss and set

within the applicable statutory maximum.”). Furthermore, the district court

indicated at sentencing that even if it had sustained Garner’s sentencing objections

and the Guidelines were mandatory, the court would have departed upward to

impose the same sentence, because Garner’s actions would constitute an abuse of

trust warranting a Guidelines increase. Garner offers no explanation as to why

such conduct could not have constituted the requisite “aggravating factor . . . that

places the case outside of the Guidelines’ heartland.” United States v. Amedeo,

370 F.3d 1305, 1313 (11th Cir. 2004).2

       Garner also argues that his 60-month sentences are unreasonable because

the instant case did not, in his view, involve vulnerable victims, violence or the

security of a financial institution or market, and because he accepted responsibility



       2
          Nor was Garner’s plea agreement breached, as he suggests, by the imposition of the 60-
month sentence. Although the agreement stated that the district court’s sentencing discretion
was “restricted” by the Sentencing Guidelines, the agreement did not purport to define the scope
of that restriction, and courts are still required, post-Booker, to consider the Guidelines in
sentencing. See Booker, 543 U.S. at __, 125 S. Ct. at 757. Moreover, the plea agreement
warned that any prediction of a sentence which might be imposed was not a guarantee or binding
promise, and acknowledged that the district court would make the “final determinations” as to
“any issue under the Sentencing Guidelines.”

                                               4
for his conduct, expressed remorse, and cooperated with pretrial supervision. In

determining, post-Booker, whether a sentence is unreasonable, we are guided by

the factors outlined in 18 U.S.C. § 3553(a). See United States v. Winingear, 11th

Cir. 2005, __ F.3d __, (No. 05-11198, Aug. 30, 2005) (per curiam). However, we

do not expect a district court always “to conduct an accounting of every § 3553(a)

factor . . . and expound upon how each factor played a role in its sentencing

decision.” United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (per

curiam). The district court in the instant case considered the applicable Guidelines

range and expressly stated that it had reviewed and considered fully the factors set

forth in § 3553(a). When imposing sentence the court noted, among other things,

that Garner’s offenses involved a significant amount of money, extensive planning,

and prolonged criminal activity over a two-year period–including appropriation of

various notary seals and the alteration and forgery of a number of deeds. Such

conduct, the court found, demonstrated a high degree of contempt for the law in

light of Garner’s education and experience. Upon review of the record and the

factors set forth in § 3553(a), we are satisfied that Garner’s 60-month concurrent

sentences on five offenses–a mere fraction of the 20-year statutory maximum

applicable to each–are not unreasonable.

      AFFIRMED.



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