                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             January 24, 2006
                             No. 05-12632                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 04-00467-CR-T-26-EAJ


UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

TIRSO VALENTIERRA-SANCHEZ,

                                                         Defendant-Appellant.


                       ________________________

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

                            (January 24, 2006)


Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:
      Tirso Valentierra-Sanchez appeals his concurrent 135-month sentences for:

(1) possession with intent to distribute five kilograms or more of cocaine while

aboard a vessel subject to United States’ jurisdiction, in violation of 46 App.

U.S.C. § 1903(a), (g), and 21 U.S.C. § 960(b)(1)(B)(ii) (Count One); and (2)

conspiracy to possess with intent to distribute five kilograms or more of cocaine

while aboard a vessel subject to United States’ jurisdiction, in violation of §

1903(g), (j), and § 960(b)(1)(B)(ii) (Count Two). On appeal, Valentierra-Sanchez

argues that the district court erred by failing to consider the sentencing factors

outlined in 18 U.S.C. § 3553(a) when it imposed his sentence. After review, we

affirm.

                                 I. BACKGROUND

      The United States Coast Guard (“USCG”) observed a fishing vessel, the San

Jose, in the eastern Pacific Ocean, that was riding low in the water and was not

engaged in fishing activities. USCG personnel boarded the San Jose and detained

its Colombian captain and seven Colombian crew members, including Valentierra-

Sanchez. During a search of the vessel, USCG personnel located several

discolored tiles under the lower bunks in the berthing compartments. After

removing the tiles, they discovered 525 bales of cocaine, weighing a total of

10,500 kilograms. Before the San Jose left Colombia, Valentierra-Sanchez and



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other crew members met with the captain, who told them that they would be

transporting cocaine to a transfer point in the eastern Pacific Ocean.

         Valentierra-Sanchez pled guilty to both counts. The presentence

investigation report (“PSI”) assessed a base offense level of 38 under U.S.S.G. §

2D1.1(c)(1) based on the amount of cocaine (150 kilograms or more) that

Valentierra-Sanchez had possessed and conspired to distribute. Based on a total

offense level of 33 and a criminal history category I, the PSI recommended a

guideline range of 135 to 168 months’ imprisonment.1 In his written objection,

Valentierra-Sanchez argued only that he should receive a mitigating-role reduction

under U.S.S.G. § 3B1.2. Valentierra-Sanchez did not otherwise object to the PSI’s

application of the sentencing guidelines or to the calculation of his guidelines

range.

         At the sentencing hearing, Valentierra-Sanchez withdrew his request for a

mitigating-role reduction. The district court nonetheless addressed the request,

noting that it was declining to give Valentierra-Sanchez a downward adjustment

based on the following: (1) Valentierra-Sanchez’s crew members indicated that he



         1
        To the base offense level of 38, the PSI recommended a two-level reduction in the offense
level under U.S.S.G. § 2D1.1(b)(7) because Valentierra-Sanchez met the criteria for application of
the guidelines’ safety-valve provision, a two-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(a) and a one-level reduction for timely notification of the intent to plead guilty
pursuant to U.S.S.G. § 3E1.1(a) and (b).

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had been on three previous drug trips on the same vessel; and (2) a substantial

quantity of cocaine was involved in the instant offense. The court then calculated

Valentierra’s advisory guidelines range of 135 to 168 months and stated its belief

that a sentence of 135 months’ imprisonment, at the low end of the range, was

appropriate under the facts of the case and the factors it was supposed to consider,

as follows:

      Unless the Government possesses any adverse information, I’m
      inclined to treat him the same as I’ve treated everybody else in this
      case, except I haven’t sentenced the captain yet. I’m going to give
      him the low end which is 135 months. I believe under the facts of this
      case and under all the factors I’m supposed to consider, that’s an
      appropriate sentence . . . .

After permitting Valentierra-Sanchez to allocute, the district court imposed a

sentence of 135 months’ imprisonment. This appeal followed.

                                 II. DISCUSSION

A.    Jurisdiction

      The government, as a threshold matter, points out that Valentierra-Sanchez

does not challenge any application of the guidelines or the ultimate calculation of

his guideline range of 135 to 168 months. Because Valentierra-Sanchez’s sentence

was within a correctly-calculated guidelines range, the government contends that

we lack jurisdiction under 18 U.S.C. § 3742 to review the reasonableness of

Valentierra-Sanchez’s sentence. We disagree.

                                          4
       First, post-Booker, this Court repeatedly has reviewed sentences within the

guidelines range for unreasonableness. See, e.g., United States v. Talley, ___ F.3d

___, No. 05-11353, 2005 WL 3235409 (11 th Cir. Dec. 2, 2005); United States v.

Scott, 426 F.3d 1324 (11 th Cir. 2005); United States v. Winingear, 422 F.3d 1241

(11 th Cir. 2005). Second, although Booker excised the standards of review in 18

U.S.C. § 3742(e), the Supreme Court explained that “the [Federal Sentencing] Act

continues to provide for appeals from sentencing decisions (irrespective of whether

the trial judge sentences within or outside the Guidelines range in the exercise of

his discretionary power under § 3553(a)),” and cited 18 U.S.C. § 3742(a).2 United

States v. Booker, 543 U.S. 220, ___, 125 S. Ct. 738, 765 (2005) (instructing

appellate courts to review a sentence for “unreasonableness” in light of the factors

set forth in § 3553(a)).

       Although the Supreme Court in Booker did not identify which provision of §


       2
              Specifically, § 3742(a) provides a defendant may appeal his sentence if that sentence:
              (1) was imposed in violation of law;
              (2) was imposed as a result of an incorrect application of the
              sentencing guidelines; or
              (3) is greater than the sentence specified in the applicable guideline
              range to the extent that the sentence includes a greater fine or term of
              imprisonment, probation, or supervised release than the maximum
              established in the guideline range, or includes a more limiting
              condition of probation or supervised release under section 3563(b)(6)
              or (b)(11) than the maximum established in the guideline range; or
              (4) was imposed for an offense for which there is no sentencing
              guideline and is plainly unreasonable.
18 U.S.C. § 3742(a).

                                                 5
3742(a) provided for appeals for “unreasonableness,” we conclude that a post-

Booker appeal based on the “unreasonableness” of a sentence, whether within or

outside the advisory guidelines range, is an appeal asserting that the sentence was

imposed in violation of law pursuant to § 3742(a)(1). See United States v. Frokjer,

415 F.3d 865, 875 & n.3 (8 th Cir. 2005) (holding that Booker did not alter the rule

that a district court’s discretionary decision not to depart downward is

unreviewable, but noting that, after Booker, the court will “review a defendant’s

argument that even a sentence within the advisory guideline range is

‘unreasonable’ with regard to the factors set forth in 18 U.S.C. § 3553(a), and an

unreasonable sentence would be imposed ‘in violation of law’ within the meaning

of § 3742(a)”) (citation omitted). Thus, this Court has jurisdiction under §

3742(a)(1) to review sentences for unreasonableness.

B.       Consideration of the § 3553(a) Factors

         Valentierra-Sanchez argues that the district court erred by failing to consider

the sentencing factors outlined in § 3553(a) in imposing his sentence. Valentierra-

Sanchez does not argue on appeal that his sentence is unreasonable under Booker.

Instead, he argues only that the district court failed to consider the factors in §

3553(a) on the record and instead blindly sentenced him within the guidelines

range.



                                             6
      After the Supreme Court’s decision in Booker, a district court, in

determining a reasonable sentence, is required to take into account the advisory

guidelines range and the sentencing factors set forth in 18 U.S.C. § 3553(a). See

United States v. Booker, 543 U.S. 220, ___, 125 S. Ct. 738, 764-66 (2005). “The

factors in § 3553(a) 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.” United States v. Scott, 426 F.3d 1324, 1328-29 (11 th Cir. 2005)

(citing 18 U.S.C. § 3553(a)). Although the district court must consider § 3553(a)’s

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.” Id. at 1329. Instead, “acknowledgment by the

district court that it has considered the defendant’s arguments and the factors in

section 3553(a) is sufficient under Booker.” United States v. Talley, ___ F.3d ___,

No. 05-11353, 2005 WL 3235409, at *2 (11 th Cir. Dec. 2, 2005).

      Here, Valentierra-Sanchez’s argument that the district court failed to

consider the § 3553(a) factors is without merit. At sentencing, the district court

explicitly found that Valentierra-Sanchez’s final sentence of 135 months’



                                           7
imprisonment was appropriate “under the facts of this case and under all the factors

[it was] supposed to consider.” Additionally, the district court expressly

mentioned the nature and circumstances of the offense and history and

characteristics of Valentierra-Sanchez, including the amount of cocaine involved in

the offense and other crew members’ statements that Valentierra-Sanchez had been

involved in at least three prior drug runs on the same vessel. Considering the

sentencing transcript as a whole, we conclude that Valentierra-Sanchez has shown

no reversible error.

      Therefore, we affirm Valentierra-Sanchez’s sentences.

      AFFIRMED.




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