FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 28, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-13035

Non-Argument Calendar

________________________

D. C. Docket No. 03-00059-CR-3-LAC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MARK RICHARD TYNES, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(December 28, 2005)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:

After a jury trial, Mark Richard Tynes appeals his 324-month sentence for
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conspiring to possess with intent to distribute 100 kilograms or more but less than

1000 kilograms of a mixture or substance containing marijuana, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) and 846 (Count I), and his 120-month sentence

for possession with intent to distribute less than 50 kilograms of a mixture or

substance containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) &

(b)(1)(D). After review, we affirm.

On appeal, Tynes argues that, even under an advisory guidelines system, his

sentence: (1) violates the statutory maximum as defined by Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); (2) violates United States v. Booker,

543 U.S. 220, 125 S. Ct. 738 (2005), because the district court determined drug

quantity based on facts neither admitted by him nor proven beyond a reasonable

doubt; and (3) was unreasonable. 

I. STATUTORY MAXIMUM

Tynes argues that his sentence violates Apprendi because the district court

impermissibly held him accountable for 1,360 kilograms of marijuana. 

Specifically, Tynes asserts that because (1) he did not admit to the 1,360

kilograms, and (2) the jury specifically found him guilty of distributing less than

1,000 kilograms of cocaine, the statutory maximum for Apprendi purposes is

limited to a drug quantity of less than 1,000 kilograms.
“In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), the 1

Supreme Court held that the government need not allege in its indictment and need not prove

beyond a reasonable doubt that a defendant had prior convictions for a district court to use those

convictions for purposes of enhancing a sentence.” United States v. Marseille, 377 F.3d 1249,

1257 (11 Cir.), cert. denied, 125 S. Ct. 637 (2004). Neither Apprendi, Blakely v. Washington, th

542 U.S. 296, 124 S. Ct. 2531 (2004), nor Booker disturbed the Almendarez-Torres holding. 

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11 Cir. 2005). th

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Tynes was originally charged with conspiring to possess with intent to

distribute 1000 kilograms or more of a mixture or substance containing marijuana,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) and 846 (Count I). Although

the jury returned a guilty verdict as to Count I, the district court submitted a special

verdict that directed the jury to “determine the amount of marijuana involved in the

conspiracy.” The jury selected “less than one thousand (1,000) kilograms but one

hundred (100) kilograms or more of . . . marijuana.” Thus, under Apprendi, the

statutory maximum is limited to the maximum for an amount less than 1,000

kilograms of marijuana.

Based on the drug quantity found by the jury (less than 1,000 kilograms but

more than 100 kilograms of marijuana), Tynes’s statutory maximum would have

been 40 years. See 21 U.S.C. 841(b)(1)(B). However, because Tynes has a prior

criminal conviction for a felony drug offense, his statutory maximum became life. 

See id. Because Tynes’s statutory maximum was life, his 324-month sentence did 1

not violate Apprendi.

II. BOOKER
This is Tynes’s second appeal before this Court. In his first appeal, this Court 2

determined that there was sufficient evidence to support the application of various enhancements

and that the defendant’s sentence did not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). See United

States v. Tynes, No. 12105 (11 Cir. Dec. 27, 2004). Shortly thereafter, the Supreme Court th

decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Based on Booker, this

Court granted Tynes’s motion for reconsideration and vacated his sentence. See United States v.

Tynes, No. 12105 (11 Cir. Mar. 10, 2005). However, this Court affirmed the district court’s th

guidelines calculations, including drug quantity. Id.

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Tynes also argues that his sentence violates Booker because the district court

determined drug quantity based on facts neither admitted by him nor proven

beyond a reasonable doubt. This argument is foreclosed by Tynes’s first appeal.2

In any event, this Court has repeatedly stated that after Booker a district

court may continue to determine drug quantity, or any other enhancement under an

advisory guidelines system, based on a preponderance of the evidence. See United

States v. Rodriguez, 398 F.3d 1291, 1297 (11 Cir. 2005). In fact, a district court th

may even continue to consider relevant acquitted conduct when applying the

guidelines in an advisory manner. See United States v. Duncan, 400 F.3d 1297,

1304-05 (11 Cir. 2005). Consequently, Tynes’s Booker argument is without th

merit.

III. REASONABLENESS

Finally, Tynes argues that his sentences were unreasonable because his codefendants received lower sentences. However, Tynes acknowledges that his

“prior criminal history likely resulted in a stiffer penalty.” 
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In imposing Tynes’s sentences, the district court stated:

I do find this sentence meets the general goals of punishment and

hopefully will act as a deterrence [sic] to others who might consider

similar criminal conduct. And upon review of all of the factors

properly considered under Title 18, United States Code, Section 3553-

[a], taking into account the advisory nature of the sentencing

guidelines, I do conclude that this sentence, which is within the

guideline range but at the low end, is reasonable. This sentence is

sufficient and a greater sentence is not necessary to comply with the

statutory and defined purposes of sentencing.

 

Given Tynes’s criminal history and the district court’s consideration of the

§ 3553(a) factors, we conclude that his sentence was not unreasonable. See United

States v. Scott, 426 F.3d 1324, 1330 (11 Cir. 2005); United States v. Winingear, th

422 F.3d 1241, 1246 (11 Cir. 2005). th

For all the above reasons, we affirm Tynes’s concurrent 324-month and 120-

month sentences.

AFFIRMED.