                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                  APRIL 8, 2008
                                 No. 07-13962
                                                                THOMAS K. KAHN
                             Non-Argument Calendar
                                                                    CLERK
                           ________________________

                      D. C. Docket No. 07-80043-CR-DMM

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                       versus

WILBUR AMATI,

                                                         Defendant-Appellant.

                           ________________________

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

                                (April 8, 2008)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Wilbur Amati appeals his convictions and sentences on five counts of alien

smuggling, 8 U.S.C. § 1324. First, he challenges the district court’s decision
admitting evidence of his prior acts of alien smuggling under Federal Rule of

Evidence 404(b). Second, he challenges his 80-month concurrent sentences as

resulting from an improper, upward variance. For the following reasons, we

affirm.

                                   I. Rule 404(b).

      Amati argues that he did not testify, and there was no suggestion of mistake,

lack of identity, or other basis on which to offer evidence of his prior smuggling

acts. Therefore, the evidence was used solely for improper propensity purposes.

      We review a district court’s ruling on the admissibility of evidence under

Rule 404(b) for an abuse of discretion. United States v. Perez, 443 F.3d 772, 774

(11th Cir. 2006). Rule 404(b) provides that:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such as
      proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident . . . .

Fed.R.Evid. 404(b). We employ a three-part test in regard to the admissibility of

evidence under Rule 404(b): (1) the evidence must be relevant to an issue other

than character; (2) sufficient proof must exist to find that the defendant committed

the prior act; and, (3) the probative value of the evidence cannot be substantially

outweighed by its undue prejudice. Perez, 443 F.3d at 779.



                                           2
      Upon review of the record and the parties’ briefs, we find no abuse of

discretion in admitting testimony concerning Amati’s prior alien smuggling

ventures. When Amati was arrested, he claimed that he had lent his boat to Mr.

Rey-Garcia and his nephew to test the engines for him and to do some fishing. He

denied knowing that Rey-Garcia was picking up aliens. Thus, we find no abuse of

discretion in the finding that evidence that Amati and Rey-Garcia had smuggled

aliens in the past was relevant to rebut this exculpatory statement and that the

evidence met the admissibility test under 404 (B).

      Further, limiting instructions as to the jury’s permissible use of Rule 404(b)

evidence can alleviate any undue prejudice caused by the admission of such

evidence. United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007). Here,

the court cautioned the jury as to the limited use of the extrinsic evidence, which

alleviated any unfair prejudice the evidence may have otherwise caused.

                                II. Amati’s Sentences

      Next, Amati argues that the court erroneously added 20 months to his

mandatory 60-month sentence, based on his obstruction of justice, when the

guidelines calculation already included an enhancement for such conduct. He

contends that obstruction is common among defendants and, therefore, an

insufficient basis for such a variance.



                                           3
      We review the sentence imposed by the district court for reasonableness.

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Reasonableness

review requires that we apply an abuse-of-discretion standard. Gall v. United

States, __ U.S. __, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). The Supreme

Court has instructed that we:

      [M]ust first ensure that the district court committed no significant
      procedural error, such as failing to calculate (or improperly
      calculating) the Guidelines range, treating the Guidelines as
      mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
      selecting a sentence based on clearly erroneous facts, or failing to
      adequately explain the chosen sentence-including an explanation for
      any deviation from the Guidelines range.

Id., __ U.S. at __, 128 S.Ct. at 597. To that end, the district court “should set forth

enough to satisfy the appellate court that he has considered the parties’ arguments

and has a reasoned basis for exercising his own legal decisionmaking authority.”

Rita v. United States, __ U.S. __, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007).

      If the district court’s decision is procedurally reasonable, our analysis then

turns to the substantive reasonableness of the sentence. See Gall, __ U.S. at __,

128 S.Ct. at 597. “In 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.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.

2006). If the sentence is outside the guideline range, we “may consider the extent



                                            4
of the deviation, but must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Gall, __ U.S. at

__, 128 S.Ct. at 597. “[T]he party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable in the light of both [the] record and

the factors in section 3553(a).” Talley, 431 F.3d at 788.

      The § 3553(a) factors include:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Id. at 786 (summarizing 18 U.S.C. § 3553(a)). However, “nothing in Booker1 or

elsewhere requires the district court to state on the record that it has explicitly

considered each of the section 3553(a) factors or to discuss each of the section

3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Instead, an explicit acknowledgment that the district court has considered the

defendant’s arguments and the § 3553(a) factors will suffice. Id. at 1329-30.

      Upon review of the record and the parties’ briefs, we discern no error.

      1
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

                                                5
      Here, Amati’s sentences were not procedurally unreasonable, as the court

correctly calculated the guideline range, considered the parties’ statements and the

§ 3553(a) factors, and articulated its reasons in support of his sentences.

Moreover, his sentences were not substantively unreasonable. The guidelines

calculation included an enhancement for obstructing justice, based on his threats to

kill two witnesses for testifying against him. However, his mandatory 60-month

sentence was beyond the guideline range and did not account for his threats.

Further, the witnesses whom Amati threatened each received 60-month sentences

for their involvement in the same smuggling venture. Therefore, the court acted

within its discretion in sentencing Amati beyond the mandatory minimum to afford

adequate punishment for his efforts to impede the administration of justice.

      AFFIRMED.




                                           6
