                                                                [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                       FILED
                                                             U.S. COURT OF APPEALS
                        ------------------------------------------- ELEVENTH CIRCUIT
                                     No. 05-10878                      March 17, 2006
                               Non-Argument Calendar                 THOMAS K. KAHN
                       --------------------------------------------      CLERK

                      D.C. Docket No. 04-00048-CR-SPM

UNITED STATES OFAMERICA,

                                                            Plaintiff-Appellee,

                                       versus

LARRY VICTOR REEVES,

                                                            Defendant-Appellant.


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

                                 (March 17, 2006)

Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Larry Victor Reeves appeals his 60-month concurrent sentences--imposed

pursuant to his guilty plea--for conspiracy to commit fraud through unauthorized
use of access devices, in violation of 18 U.S.C. §§ 371 & 1029(b)(2) (“Count

One”), and for unauthorized use of access devices, in violation of 18 U.S.C.

§§ 1029(b)(2) & (2) (“Count Two”). No reversible error has been shown; we

affirm.

      Reeves entered his guilty plea before the Supreme Court’s decision in

United States v. Booker, 125 S.Ct. 738 (2005). Reeves stipulated that he would

purchase merchandise from Lowe’s and Home Depot stores using stolen credit

card numbers provided by a co-conspirator, who obtained the numbers from a gas

station. Reeves would write the stolen numbers on legitimate “instant issue”

credit cards and then made the purchases. At the plea colloquy, Reeves was

informed that the statutory maximum sentences were five years for Count One and

ten years for Count Two. Reeves was advised that the Sentencing Guidelines

would apply to his case and that, after the guideline range was determined, the

district court would have “some very limited authority to go . . . above the

guideline.” The plea agreement reflected that the district court’s sentencing

discretion would be restricted “only by the statutory provisions and the Sentencing

Guidelines.”

      Based on a total offense level of 12 and a criminal history category of III,

the presentence investigation report (“PSI”) recommended a guideline sentencing

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range of 15 to 21 months’ imprisonment. The PSI assigned Reeves a loss amount

of $88,222.74 and described Reeves’s past convictions, the majority of which

were for writing bad checks and for driving with a suspended or revoked license.

      At sentencing, which occurred shortly after Booker was decided, the district

court stated that the guidelines were advisory, not mandatory. The court indicated

that it “had reviewed and fully considered all of the factors set out in 18 U.S.C.

§ 3553(a), including the applicable guideline range and the policy statements

issued by the sentencing commission.” The court then adopted the PSI, but

sentenced Reeves to 60-month concurrent sentences, noting that the court had

tailored the sentences to take into account the amount of loss, Reeves’s criminal

history, and the “involved nature of the offenses.”

      Reeves argues that the application of the Sentencing Guidelines as advisory,

rather than mandatory, worked to his detriment and violated his Fifth Amendment

Due Process rights. Reeves contends that, when he committed his crimes, the

guidelines were mandatory and that, under the mandatory guideline range, the

district court was limited to imposing a 15 to 21 month sentence, absent a lawful

departure. He, thus, maintains that he did not have fair warning of the punishment

that he would face post-Booker and that his sentence should not exceed the

sentence permitted by the pre-Booker mandatory guidelines scheme.

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      We review de novo a claim of constitutional error; but we will reverse only

for harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

      We previously have rejected a due process “fair warning” claim in United

States v. Duncan, 400 F.3d 1297, 1307-08 (11th Cir.), cert. denied, 126 S.Ct. 432

(2005). We are not persuaded by Reeves’s attempt to distinguish Duncan on the

ground that the life sentence imposed in Duncan was identified not just by the

applicable statute, but also indicated by the guidelines themselves. In Duncan, we

wrote that, at the time the defendant committed the offense of conviction,

“[a]lthough mandatory Guidelines were in place, the law of this Circuit then

recognized the U.S. Code as the source of the maximum sentence.” Id. at 1308.

The statutory maximum sentences in effect at the time of Reeves’s criminal

conduct--five years for Count One and ten years for Count Two--provided him

with enough fair warning for purposes of due process.

      Reeves also asserts that the application of the guidelines as advisory, rather

than mandatory, resulted in a breach of the plea agreement. We reject this

contention. The plea agreement provided that the district court’s sentencing

discretion would be restricted by the guidelines. But the plea agreement did not

attempt to define the scope of that restriction. And after Booker, courts still are

required to consider the guidelines. See Booker, 125 S.Ct. at 767. Further, the

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plea agreement warned that “any prediction of the sentence which may be imposed

is not a guarantee or binding promise.”

      Reeves challenges his sentence as unreasonable. He contends that the

guidelines do not provide for enhancement when the nature of a fraud is

“involved.” And he maintains that, although the district court took into account

his criminal history and the loss amount in imposing sentence, the court failed to

make a finding that these elements were considered inadequately in forming the

proper guideline range. He also asserts that a 60-month sentence was too extreme

of a departure from the applicable guideline range.

      Post-Booker, we review sentences for reasonableness. See United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (per curiam). In determining

whether a sentence is unreasonable, we are guided by the factors set forth in 18

U.S.C. § 3553(a). See Winingear, 422 F.3d at 1246. These 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 guideline range. See 18 U.S.C. § 3553(a).

      Here, in imposing a sentence above the guideline maximum of 21 months’

imprisonment, the district court stated that it had considered all the § 3553(a)

                                          5
factors and the guidelines. To the extent that Reeves challenges the district court’s

failure to explain the weight it accorded to each sentencing factor, the court was

not required to do so. See United States v. Scott, 426 F.3d 1324, 1329-30 (11th

Cir. 2005). The district court also noted that it was considering the amount of

loss, Reeves’s criminal history, and the “involved nature of the offenses.” In

addition, the district court expressed its concern that Reeves extensively had

targeted two victims: Home Depot and Lowe’s. And we note that Reeves’s 60-

month concurrent sentences are only one third of the 15-year total statutory

maximum sentence he could have received had the district court decided to

sentence him to a 10-year sentence on Count Two and to run the sentences

consecutively.

      The district court properly detailed why, based on its consideration of the §

3553 factors, a sentence above the guideline range was warranted. Thus, after

reviewing the record and the § 3553(a) factors, we are satisfied that Reeves’s 60-

month concurrent sentences are not unreasonable.

      AFFIRMED.




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