FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 23, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15593

Non-Argument Calendar

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D. C. Docket No. 03-00126-CR-RBP-RRA

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

WESTON L. SMITH, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Alabama

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(May 23, 2006)

Before TJOFLAT, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

Appellant pled guilty pursuant to a plea agreement to all four counts of an

information: Count 1, conspiracy to commit wire fraud and securities fraud; Count
 The court sustained a second defense objection not relevant here.

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2, falsely certifying financial information filed with the Securities and Exchange

Commission (“SEC”); Count 3 filing false reports with the SEC; Count 4,

forfeiture (relating to Counts 1 and 2). In the plea agreement, the Government

agreed to recommend at sentencing that appellant be given a base-offense-level

reduction of three levels for acceptance of responsibility and that he be sentenced

at the low end of the Guidelines sentence range. In addition, the Government

agreed to file a motion for downward departure from that range under U.S.S.G. §

5K1.1 if appellant agreed to provide substantial assistance in the investigation of

another person who had committed an offense.

At the sentencing hearing, appellant objected to the amount of the loss

indicated in the presentence report, over $5 billion, and urged the court to find the

loss at $327 million. The court sustained the objection, finding the loss at the latter

figure. Prior to considering the parties motions for departure from the Guidelines 1

sentence range, the court calculated the offense level at 43. With a criminal history

category of I, the Guidelines called for sentences of life imprisonment. The

statutorily authorized maximum sentences, however, were less than life

imprisonment. Thus, the Guidelines prescribed sentence for Count 1 became 60

months, for Count 2, 120 months, and for Count 3 120 months, all running
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consecutively for a total of 300 months. The Government moved the court for a

downward departure under § 5K1.1, recommending that the court sentence

appellant to a total of 60 months confinement, and the court granted its motion. 

Appellant then moved the court to depart downward further, and the court granted

his motion. It sentenced appellant to concurrent prison terms of 27 months. Asked

whether he had any objections to his sentences or the manner in which they were

imposed, appellant stated that it relied on its previous objections. He now appeals

his sentences.

Appellant contends that the district court mistakenly believed that it did not

have the authority to depart from the Guidelines sentence range based on the

disparity between his and his co-defendants’ sentences; that, pursuant to 18 U.S.C.

§ 3553(a)(6), the court is required to consider the need to avoid disparity among

defendants with similar records found guilty of similar conduct; that because of the

court’s failure adequately to consider the disparity issue, the court gave him a

greater total sentence than his equally or more culpable co-conspirators though his

conduct called for a lesser sentence; that three co-defendants who played more

culpable roles in the offense conduct received probation or minimal sentences, and

many others involved in the fraud received only probation; and that he should have

received a lesser sentence because his cooperation with the government was more
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extensive than that given by the other individuals. Finally, he contends that,

following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), a court can and must sentence a defendant to the same term of

imprisonment as those equally culpable.

Post-Booker, we review a sentence imposed by the district court for

reasonableness. United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). 

Sentencing now requires two steps. Id. at 786. First, the district court must consult

the guidelines and correctly calculate the sentence range under the Guidelines. Id. 

Pre-Booker standards for reviewing application of the guidelines still apply. 

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

court must consider the factors listed in 18 U.S.C. § 3553(a). Talley, 431 F.3d at

785. One of those factors is “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). 

In the instant case, the court carried out both of these steps and, in the

process, specifically considered the disparity, if any, between appellant’s sentences

and the sentences his co-defendants received (from another district judge) and

granted appellant a downward departure on that basis. Contrary to appellant’s

view, the court was not mistaken concerning his departure authority; the court fully
 In his brief, appellant raises other issues. They were not preserved. See United States v. 2

Jones, 899 F.2d 1097 (11th Cir. 1990).

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understood what it was. Appellant’s claim is therefore meritless. 

2

AFFIRMED