                                                            [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 June 27, 2006
                                No. 05-13942                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                  D. C. Docket No. 04-00457-CR-T-30-MSS-009

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

JESUS DIAZ,
a.k.a. Gringo,

                                                            Defendant-Appellant.


                          ________________________

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

                                 (June 27, 2006)


Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
       Jesuz Diaz appeals his sentence for conspiracy to distribute and possess with

intent to distribute one or more kilograms of a substance containing heroin in

violation of 21 U.S.C. §§ 841(b)(1)(A)(i) and 846. Diaz asserts the district court

committed reversible error by rendering an unreasonable sentence because it did

not reduce Diaz’s sentence below the applicable Guidelines range. Diaz contends

that in considering the nature of his offense and personal characteristics the district

court should have imposed a lower sentence under 18 U.S.C. § 3553(a)(1). Diaz’s

sentence is reasonable, and we affirm.1

       We review a defendant’s ultimate sentence, in its entirety, for reasonableness

in light of the factors in 18 U.S.C. § 3553(a). United States v. Winingear, 422 F.3d

1241, 1246 (11th Cir. 2005). The factors in 18 U.S.C. § 3553(a) include the

following:

       (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

       1
          The Government contends we lack jurisdiction to review the district court’s decision not
to impose a sentence below the applicable Guidelines range. This argument is without merit. We
have recently held “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 [18 U.S.C.] § 3742(a)(1).” United States v. Martinez, 434 F.3d 1318,
1322 (11th Cir. 2006). Accordingly, we have jurisdiction under § 3742(a)(1) to review Diaz’s
sentence for reasonableness. Id. The Government also asserts we should hold a sentence within the
applicable Guidelines range is presumptively reasonable. We have expressly rejected this argument.
United States v. Talley, 431 F.3d 784, 787 (11th Cir. 2005).

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      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.

Talley, 431 F.3d at 786.

      “[N]othing 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.” United States v. Scott, 426 F.3d 1324, 1329 (11th

Cir. 2005). Post-Booker, the sentencing court still must calculate the Guidelines

correctly. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005).

      Here, the district court correctly calculated the Guidelines, considered the

factors in § 3553 and Diaz’s arguments, and imposed a reasonable sentence. Diaz

does not assert the district court erred in its calculation of the Guidelines, and a

review of the record does not reveal any error. In listening to Diaz’s arguments

and in reviewing the pre-sentence investigation report, the court considered the

history and characteristics of Diaz. 18 U.S.C. § 3553(a)(1). The court considered

the nature of the offense and found Diaz was one of the “most active sellers” in a

conspiracy involving the sale of over 10 kilograms of heroin. Id. The court also

considered the treatment available to Diaz and ordered him to participate in mental

health and drug treatment, and furthermore, the court noted Diaz should be able to



                                            3
receive treatment for his Hepatitis C in prison. 18 U.S.C. § 3553(a)(2).

Additionally, Diaz’s sentence of 188 months’ imprisonment was well below the

statutory maximum sentence of life imprisonment. 18 U.S.C. § 3553(a)(3); 21

U.S.C. §§ 841(b)(1)(A)(i) and 846.

      Accordingly, we conclude Diaz’s sentence was reasonable in light of the

record and the factors of § 3553(a). We affirm Diaz’s sentence.

      AFFIRMED.




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