                                                     [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT            FILED
                     ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                      NOVEMBER 16, 2005
                            No. 05-11144
                                                       THOMAS K. KAHN
                       Non-Argument Calendar
                                                           CLERK
                      ________________________

              D. C. Docket No. 04-00007-CR-ORL-18DAB

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                versus

SHAWN MICHAEL SIMMERER,

                                                   Defendant-Appellant.


                      ________________________

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

                           (November 16, 2005)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Appellant Shawn Michael Simmerer appeals his conviction and 60-month

sentence for bank fraud in violation of 18 U.S.C. §§ 1344 and 2. On appeal,

Simmerer argues that the district court erred in (1) denying his motion for a

continuance, (2) admitting evidence of flight from law enforcement and giving a

jury instruction as to flight, and (3) imposing an unreasonable sentence in excess of

the Guideline range. He contends that, in imposing an unreasonable sentence, the

court failed to (1) provide advance notice that it was contemplating a sentence in

excess of the Guideline imprisonment range of 27-33 months, (2) apply the

Guidelines in a mandatory fashion in order to avoid an ex post facto violation, and

(3) accurately calculate the sentencing range prescribed by the Guidelines.

I. Motion for a Continuance

      We review the district court’s denial of a request for a continuance for abuse

of discretion. United States v. Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000). The

Sixth Amendment to the U.S. Constitution guarantees that any person brought to

trial in any federal court must be afforded the right to assistance of counsel before

he or she can be validly convicted and punished by imprisonment. Faretta v.

California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d. 562 (1975). A

trial court’s denial of a motion for continuance may violate this right because it

may infringe upon defense counsel’s ability to prepare an adequate defense. See



                                           2
United States v. Verderame, 51 F.3d 249, 251 (11th Cir. 1995). “There are no

mechanical tests for deciding when a denial of a continuance is so arbitrary as to

violate due process. The answer must be found in the circumstances present in

every case, particularly in the reasons presented to the trial judge at the time the

request is denied.” Id. To show a violation of the right to counsel as the result of a

denial of a motion for continuance, a defendant must show that the denial resulted

in specific substantial prejudice. Id.

      After reviewing the record, we conclude that the district court did not abuse

its discretion in denying Simmerer’s motion for a continuance. Although

Simmerer listed several grounds as to why he needed a fifth continuance,1 his

motion failed to articulate how he would suffer specific prejudice if the motion was

denied. Thus, the court did not abuse its discretion in denying the motion.

II. Intentional Flight

A. Admissibility

      “The ultimate decision on admissibility of flight evidence rests with the trial

judge, whose exercise of discretion will not be overturned absent a showing of

clear abuse.” United States v. Blakely, 960 F.2d 996, 1001 (11th Cir. 1992).

“Evidence of flight is admissible to demonstrate consciousness of guilt and thereby


      1
          The district court granted Simmerer four previous continuances of his trial date.


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guilt.” Id. at 1000. However, the probative value of such evidence diminishes “if

the defendant has committed several unrelated crimes or if there has been a

significant time delay between the commission of the crime or the point at which

the accused has become aware that he is the subject of a criminal investigation, to

the time of flight.” Id. at 1000-01. Evidence of flight is probative as

circumstantial evidence of guilt if the following four inferences can be confidently

drawn: “(1) from the defendant’s behavior to flight; (2) from flight to

consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt

concerning the crime charged; and (4) from consciousness of guilt concerning the

crime charged to actual guilt of the crime charged.” United States v. Myers, 550

F.2d 1036, 1049 (5th Cir. 1977).2

       After reviewing the record, we conclude that in admitting the evidence of

Simmerer’s flight, the district court did not abuse its discretion. Based on the

circumstances surrounding Simmerer’s arrest, one can make inferences (1) from

his behavior to flight; (2) from flight to consciousness of guilt; (3) from

consciousness of guilt to consciousness of guilt concerning the crime charged; and



       2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.




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(4) from consciousness of guilt concerning the crime charged to actual guilt of the

crime charged. Myers, 550 F.2d at 1049.

B. Jury Instruction

       We review the legal correctness of a jury instruction de novo, but defer on

questions of phrasing absent an abuse of discretion. United States v. Prather, 205

F.3d 1265, 1270 (11th Cir. 2000). District courts generally have broad discretion

in formulating jury instructions as long as the charge as a whole accurately reflects

the law and the facts. Id. Moreover, we will not reverse a conviction on the basis

of a jury charge unless the issues of law were presented inaccurately or the charge

improperly guided the jury in such a substantial way as to violate due process. Id.

We examine “whether the jury charges, considered as a whole, sufficiently

instructed the jury so that the jurors understood the issues and were not misled.”

United States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995) (quotation omitted).

We have “consistently approved the inclusion of a jury instruction on flight.”

United States v. Borders, 693 F.2d 1318, 1327 (11th Cir. 1982). An appropriate

jury instruction on flight should correctly caution the jury that it is up to it to

determine whether the evidence proves flight and what weight should be accorded

to such a determination. See id. at 1328.




                                             5
      We conclude from the record that the district court did not err in instructing

the jury regarding intentional flight because the jury instruction accurately

reflected the law. The jury instruction in the instant case mirrors the jury

instruction on flight that we upheld in Borders, and it correctly cautioned the jurors

that it was up to them to determine whether the evidence proved flight and the

weight, if any, to be accorded such a determination. See id. at 1328.

III. Sentence in Excess of the Applicable Guideline Range

A. Notice

      Fed. R. Crim. P. 32(h) provides:

      Before the court may depart from the applicable sentencing range on a
      ground not identified for departure either in the presentence report or
      in a party's prehearing submission, the court must give the parties
      reasonable notice that it is contemplating such a departure. The notice
      must specify any ground on which the court is contemplating a
      departure.

The Supreme Court has held that before district courts can depart upward on a

ground not identified either in the presentence report or in a prehearing submission

by the government, the courts must, under Fed. R. Crim. P. 32, give parties

reasonable notice that they are contemplating such a ruling and the grounds on

which the departure is based. Burns v. United States, 501 U.S. 129, 138-39, 111 S.

Ct. 2182, 2187, 115 L. Ed. 2d. 123 (1991). However, in Burns the Supreme Court




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was addressing an upward departure under the then mandatory Sentencing

Guidelines, not a post-Booker variance under an advisory system. See id.

      Because Simmerer failed to raise this issue in the district court, we review

the argument on appeal for plain error. United States v. Shelton, 400 F.3d 1325,

1328 (11th Cir. 2005). To prevail under this standard, the appellant must prove the

following three requirements: (1) there must be an error; (2) that error must be

plain; and (3) the plain error must affect substantial rights. Id. at 1328-29. Once

the appellant proves these three elements, we may notice the error only if it

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 1329. Nonetheless,

      an error cannot meet the plain requirement of the plain error rule if it
      is not clear under current law. From that principle flows the law of
      this circuit that, at least where the explicit language of a statute or rule
      does not specifically resolve an issue, there can be no plain error
      where there is no precedent from the Supreme Court or this Court
      directly resolving it.

United States v. Chau, No. 05-10640, ____F.3d ____ (11th Cir. Sept. 27, 2005)

(quotations and citations omitted).

      There is no precedent from this court or from the Supreme Court

establishing that Fed. R. Crim P. 32 applies to a post-Booker upward variance. In

the “absence of any controlling precedent” supporting Simmerer’s proposition that

there was error, United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.

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2003), the district court’s failure to give notice in compliance with Rule 32 cannot

be plain error.

B. Ex Post Facto Violation

      “The ex post facto clause prohibits the enactment of statutes which make

more burdensome the punishment for a crime, after its commission.” United States

v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004) (quotation and alterations

omitted), cert. denied, ____ S. Ct. ____ (2005). Recently, we reviewed a

defendant’s argument that Booker’s remedial provisions, if applied retroactively,

would increase the sentence authorized by the jury’s verdict and, therefore,

constitute an ex post facto law in violation of the defendant’s due process rights.

United States v. Duncan, 400 F.3d 1297, 1306-07 (11th. Cir.), cert. denied, ___ S.

Ct. ___ (2005). We determined that, when the appellant committed the offense of

conviction, “the recognized state of the law looked to the U.S. Code as establishing

maximum sentences.” Id. at 1307-08. We further explained that, before Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) was decided,

every federal court of appeals had held that Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) did not apply to guideline calculations

made within a defendant’s statutory maximum sentence. Id. at 1308. Thus, we




                                           8
concluded that the defendant, who was sentenced within his statutory range, had

sufficient warning to satisfy ex post facto concerns. Id.

      The record demonstrates that Simmerer did not preserve this issue below,

and he cannot prevail now because in this instance there was no plain error. See

Shelton, 400 F.3d at 1328-29. Simmerer’s sentence did not violate the Ex Post

Facto Clause because (1) he was sentenced to a term less than the statutory

maximum, and (2) he had sufficient warning of the possible maximum sentence

under the U.S. Code. See Duncan, 400 F.3d at 1308.

C. Reasonableness

      In United States v. Booker, the Supreme Court held that the mandatory

nature of the Federal Sentencing Guidelines rendered them incompatible with the

Sixth Amendment’s guarantee to the right to a jury trial. ____ U.S. ____, 125

S. Ct. 738, 749-51, 160 L. Ed. 2d 621 (2005). The Court decided that the

appropriate remedy was to excise two specific statutory provisions which made the

Guidelines mandatory, thereby rendering the Guidelines advisory only. 125 S. Ct.

at 764. The Court explained that, “[w]ithout the ‘mandatory’ provision, the Act

nonetheless requires judges to take account of the Guidelines together with other

sentencing goals” contained in 18 U.S.C. § 3553(a). Id. Section 3553(a) provides

that district courts imposing a sentence must first consider, inter alia, the nature



                                           9
and circumstances of the offense, the history and characteristics of the defendant,

the need for the sentence to reflect the seriousness of the offense, promote respect

for the law, and provide just punishment for the offense, and the kinds of sentences

and sentencing range established by the Guidelines. See 18 U.S.C. § 3553(a).

        We are required to “review for unreasonableness” a sentence imposed post-

Booker. Booker, 125 S. Ct. at 765 (quotation and alteration omitted); see also

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

“Booker established a ‘reasonableness’ standard for the sentence finally imposed

on a defendant”). We have stated that the district court is obligated “to calculate

correctly the sentencing range prescribed by the Guidelines.” Crawford, 407 F.3d

at 1178. “After it has made this calculation, the district court may impose a more

severe or more lenient sentence as long as the sentence is reasonable . . . .” Id. at

1179.

        In United States v. Winingear, we recently conducted a review of an

appellant’s sentence for reasonableness and explained that the sentence must be

reasonable in the context of the factors listed in 18 U.S.C. § 3553(a). 422 F.3d

1241, 1246 (11th Cir. Aug. 30, 2005). In conducting our review, we stated that it

does “not apply the reasonableness standard to each individual decision made

during the sentencing process; rather, we review the final sentence for



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reasonableness.” Id. at 1245. In addition to discussing the nature and

circumstances of the offense and Winingear’s criminal history, we specifically

noted that the sentence imposed was “one-tenth the length of the twenty-year

statutory maximum sentence,” and held that the sentence was reasonable. Id. at

1246.

        We conclude that the district court’s sentence in this case was reasonable.

The judge in sentencing Simmerer to 60 months imprisonment explained in great

detail why the Guideline range was inadequate. The judge explicitly relied on

factors listed in § 3553(a). Moreover, Simmerer’s sentence is only one-sixth the

length of the 30-year statutory maximum. See Winingear, 422 F.3d at 1246.

Furthermore, Simmerer’s argument that the court’s sentence was unreasonable

because the court incorrectly calculated his sentencing range when it gave him two

additional criminal points under U.S.S.G. § 4A1.1(d) is without merit. These two

criminal history points are immaterial to the Guideline range calculation because,

with or without these points, his criminal history category would still have been III

and the Guideline range would still have been 27 to 33 months.




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Conclusion

      For the reasons stated above, we conclude that the district court did not err

when it (1) denied Simmerer a fifth continuance of trial, (2) admitted evidence of

intentional flight, (3) gave a jury instruction on intentional flight, and (4) imposed

a sentence in excess of the applicable Guideline range. The 60-month sentence did

not violate ex post facto principles and was not unreasonable. Moreover, Simmerer

could not establish that the court’s failure to provide him reasonable notice of the

sentence was plain error. Accordingly, we affirm Simmerer’s conviction and

sentence.

      AFFIRMED.




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