                                                      [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             MAR 14, 2007
                              No. 06-13708                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                D. C. Docket No. 04-00023-CR-FTM-29DNF

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

EUGENIO GARZA,

                                                          Defendant-Appellant.


                        ________________________

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

                              (March 14, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Eugenio Garza appeals his 151-month sentence for conspiracy to possess
with intent to distribute 500 or more grams of cocaine. Garza argues that the

district court erred because: (i) his sentence was unreasonable under United States

v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005); and (ii) it was above the statutory

maximum as recognized by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

(2004), thereby violating the Ex Post Facto Clause. Garza also argues for a

sentence below the applicable guideline range based on the factors in 18 U.S.C. §

3553(a), specifically, Garza’s personal history and the disparity in the sentences

compared to those of Garza’s co-conspirators. We AFFIRM.

                                I. BACKGROUND

      A federal grand jury indicted Garza on one count of conspiracy to possess

500 grams or more of cocaine, with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)(ii), and 846. The indictment alleged that the conspiracy

began on or about March 2002 and concluded on or about 4 December 2002. After

a trial, the jury found Garza guilty of the charged offense conduct.

      In December 2002, the Florida Highway Patrol (“FHP”) arrested Julio

Sanchez when they found him in possession of approximately four kilograms of

cocaine. Sanchez confessed to the FHP that he was transporting the cocaine for

Garza and planned to deliver it to Felix Gonzalez and Guadalupe Maldonado.

Gonzalez and Maldonado informed the FHP that, from April 2002 until December



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2002, they had bought approximately five to six kilograms of cocaine from Garza.

      The probation officer calculated Garza’s base offense level using U.S.S.G.

§ 2D1.1(c)(4) and recommended a base offense level of 32, based on the fact that

the conspiracy involved at least 5 kilograms of cocaine. With an offense level of

32 and a criminal history category of I, the probation officer calculated that

Garza’s guideline imprisonment range was 121 to 151 months.

      At Garza’s initial sentencing hearing, the probation officer did not suggest a

role enhancement under U.S.S.G. § 3B1.1(c) in the original PSI. After hearing

argument for an enhancement by the government, however, the court imposed a

two-level role enhancement to Garza’s base offense level. The court found that

Garza’s offense level was 34, his criminal history category was I, and his resulting

guideline imprisonment range was 151 to 188 months. Garza argued for a sentence

at the low end of the guideline range, based upon his personal characteristics and

the sentence disparity with his co-conspirators, of whom Sanchez received a 70-

month federal sentence and the other two, Maldonado and Gonzalez, each received

a state sentence of probation. Before imposing the sentence, the court noted that,

although it was not allowed to consider disparity in sentences under the then-

mandatory guideline system, there was a “tremendous disparity” between the

sentences of Gonzalez and Maldonado and the range for Garza. R10 at 57. The



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court then imposed a sentence of 151 months’ imprisonment, and Garza appealed

his sentence.

      In Garza’s first appeal, we held that the district court did not err in its factual

findings with respect to drug quantity and leadership-role enhancement. See

United States v. Garza, 172 Fed. Appx. 983, 991-92 (11th Cir. 2006) (per curiam)

(unpublished). We then affirmed the district court’s factual findings in connection

with sentencing, but vacated and remanded for resentencing consistent with

Booker. Id. at 992.

      At the resentencing hearing, Garza first objected that, under Blakely, his

statutory maximum should be limited to the facts found by a jury, which in this

case was 500 grams of cocaine. Garza argued that, based on this drug quantity, his

statutory maximum sentence was at the high end of the applicable guideline range

of 78 months of imprisonment. Because, as Garza conceded, Eleventh Circuit case

law rejected his argument, the district court overruled that objection.

      The district court adopted the factual statements and the application of the

guidelines as stated in the PSI, which included the leadership-role enhancement

from the initial sentencing hearing. The court thus found that the applicable

guideline imprisonment range was 151 to 188 months. Garza argued that, under

the factors in 18 U.S.C. § 3553(a), the court should impose a sentence below the



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applicable guideline imprisonment range. First, Garza argued that his personal

characteristics–specifically, working since he was 12 or 13-years old to support his

family, being married to the same person for 14 years, and having no prior criminal

history except a misdemeanor for leaving the scene of an accident–warranted a

lower sentence. Garza also pointed out that he had passed the General Education

Development test while in prison. Second, Garza argued that the disparity in

sentences between him and his co-conspirators warranted a lower sentence.

Specifically, Garza contended that two co-conspirators, Maldonado and Gonzalez,

were more culpable and had only received state sentences of probation, and

another, Sanchez, had only received a federal sentence of 70 months of

imprisonment.

      The government responded that Garza’s work history should not be used in

his favor because he used his work as a truck driver to carry out his illegal

activities. As to the disparity in sentencing, the government contended that

Sanchez was held accountable for the same quantity of drugs as Garza, but that

Sanchez pleaded guilty and received a three-point reduction for acceptance of

responsibility and a two-point safety-valve reduction under U.S.S.G. § 5C1.2.

Thus, the government argued that Sanchez’s base offense level was 5 points lower

than Garza’s level and his applicable imprisonment range was 70 to 87 months.



                                           5
The government also contended that Maldonado and Gonzalez should not be

compared because they were sentenced in state court, and, moreover, they both

pleaded guilty and cooperated with the state.

      The court found that none of Garza’s arguments warranted a departure

below the applicable guideline range. The court first found that the fact that Garza

passed the GED test while in prison did not warrant a lower sentence. The court

also found that Garza’s work history did not weigh in his favor because he used his

work as a cover for delivering cocaine. As to the disparity in sentencing, the court

found that it could compare the state sentences, but found that the sentences

imposed on Maldonado and Gonzalez were not “particularly relevant or

significant.” R11 at 42. The court found that although Sanchez was “more

similarly situated,” Sanchez testified and received safety-valve and acceptance of

responsibility reductions. Id. The court noted that none of these reductions

applied to Garza and that he also had received a role enhancement. The court then

imposed a sentence of 151 months of imprisonment, which was at the low end of

the applicable guideline range. The court explained that it imposed a sentence at

the low end because the sentence would “not undermine the sentencing factors of

the sentencing guidelines, and, under the facts of the case, the low end [was]

appropriate.” Id. at 51. The court noted that it had considered all the factors under



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§ 3553(a).

                                  II. DISCUSSION

      After the Supreme Court’s opinion in Booker, we review sentences for

reasonableness, with the Guidelines applied as advisory. United States v. Talley,

431 F.3d 784, 785 (11th Cir. 2005) (per curiam). The district court must follow a

two-step process to determine a defendant’s sentence by (1) consulting the

Guidelines and correctly calculating the Guideline range, and (2) considering the

factors under 18 U.S.C. § 3553(a). Id. at 786. As to the Guidelines calculation,

“[w]e review a district court’s factual findings for clear error and its application of

the Guidelines de novo. United States v. Moriarty, 429 F.3d 1012, 1021 (11th Cir.

2005) (per curiam) (quotation omitted).

      The factors in § 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
      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 (citing 18 U.S.C. § 3553(a)). Relevant to this appeal, the

specific factor discussing sentence disparity states that the sentencing court should

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consider “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6).

      “[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). We noted in Scott that the defendant argued at length about the factors

and that the district court explicitly acknowledged that it had considered the

§ 3553(a) factors. Id. at 1329-30. Although we have rejected a per se rule, we

have explained that a sentence within the applicable guideline range has the

expectation that the sentence is reasonable. Talley, 431 F.3d at 788. Review for

reasonableness is deferential, and there are a range of sentences that are reasonable.

Id. The party who challenges the sentence has the burden of proving that the

sentence is unreasonable in light of the record and the § 3553(a) factors. Id.

      Garza argues that his sentence was procedurally unreasonable because the

court failed to address his disparity-in-sentencing argument. Garza further

contends that, because the court sentenced him inside the applicable guideline

range, it did not consider a sentence outside that range. (Id. at 20). Garza then

argues that his sentence was substantively unreasonable because the court did not



                                           8
weigh the § 3553(a) factors properly. (Id. at 21-30). Specifically, Garza contends

that his nature and circumstances, specifically his work history, education, marital

status, and criminal history, militate in favor of a lower sentence. Also, Garza

argues that the sentence disparities between his sentence and the 70-month federal

sentence for Sanchez and the state sentences of probation for Maldonado and

Gonzalez weigh toward a lower sentence. Garza further contends that the court

gave undue weight to the applicable guideline range. Last, Garza argues that the

need for specific and general deterrence warrants a lower sentence. (Id. at 28-30).

      Here, the district court did not impose an unreasonable sentence. The court

specifically considered Garza’s personal history and the disparity in sentences. See

18 U.S.C. § 3553(a)(1) and (6). Furthermore, the court considered the available

sentences and consulted the Guidelines. See 18 U.S.C. § 3553(a)(3) and (4). The

court sentenced Garza within the applicable guideline range, in fact, at the low end,

which carries at least an expectation of reasonableness. See Talley, 431 F.3d at

788. As to Garza’s argument that his sentence was disparate, the other defendants

were not similarly situated. Congress has specifically instructed sentencing courts

to consider “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 18 U.S.C. §

3553(a)(6). “The guidelines, structured to account for relative culpability and



                                          9
differences in prior records of defendants, demonstrate that the Sentencing

Commission fully anticipated sentencing disparity between defendants involved in

the same offense.” United States v. Chotas, 968 F.2d 1193, 1197 (11th Cir. 1992)

(per curiam). Other co-defendants pled guilty and cooperated with the

government. Garza directed Sanchez’s participation in the offense and Sanchez

received a safety valve reduction and a reduction for his acceptance of

responsibility, all of which are different from Garza’s situation. See, e.g., United

States v. Pisman, 443 F.3d 912, 916 (7th Cir. 2006) (disparity with co-defendant

who cooperated and received substantial assistance departure not “unwarranted”

under § 3553(a)(6)); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir.

2005), cert. denied, 126 S. Ct. 1414 (2006) (“A well-founded claim of disparity . . .

assumes that apples are being compared to apples. Here, there is no true disparity;

differences between the appellant’s belated and grudging cooperation and [his co-

defendant’s] prompt and full cooperation sensibly account for the differing

sentences.”). Therefore, the district court properly considered this factor and found

that it did not militate in favor of a sentence below Garza’s applicable guideline

range. Accordingly, because the district court considered the § 3553(a) factors and

Garza’s arguments and we are not “left with the definite and firm conviction that

the district court committed clear error of judgment in weighing the §3553(a)



                                          10
factors,” we hold that his sentence was reasonable. See United States v. Williams,

456 F.3d 1353, 1363 (11th Cir. 2006).

      As to Garza’s Blakely argument, in United States v. Duncan, 400 F.3d 1297,

1307-08 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005), we held that the statutory

maximum sentence is found in the applicable United States Code, and therefore,

there is no ex post facto or due process violation by the application of Booker to

make the Guidelines retroactively advisory. Accordingly, the district court did not

err in applying this case law. To the extent Garza argues that we should reverse

our prior decision, “[t]he law of this circuit is ‘emphatic’ that only the Supreme

Court or this court sitting en banc can judicially overrule a prior panel decision.”

Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997) (citation omitted).

                                III. CONCLUSION

      After careful review of the record and the parties’ briefs, we hold that the

district court did not impose an unreasonable sentence and there was no ex post

facto violation. Garza’s sentence is AFFIRMED.




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