FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 12, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-13534

Non-Argument Calendar

________________________

D. C. Docket No. 03-20807-CR-JEM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

REINALDO GILART, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 12, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Reinaldo Gilart appeals his sentence of 210 months of imprisonment for
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conspiracy to possess with intent to distribute cocaine. See 21 U.S.C. § 846. 

Gilart raises four arguments: because two are squarely foreclosed by precedent of

this Court, and the other two also fail, we affirm. 

I. BACKGROUND

Gilart and two other men, one of whom was an undercover police officer,

conspired to steal between 20 and 30 kilograms of cocaine from an alleged safe

house. When Gilart and the other man met with the undercover police officer to

commit the crime, police officers arrested Gilart and his co-conspirator and found a

loaded pistol on the person of Gilart’s co-conspirator. After a trial, the jury found

Gilart guilty of conspiracy to possess with intent to distribute five kilograms or

more of cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, but not guilty of

conspiracy to use, carry, and possess a firearm during and relation to a crime of

violence and a drug trafficking crime, see 18 U.S.C. § 924(o), and not guilty of

attempt to possess with intent to distribute five kilograms or more of cocaine, see

21 U.S.C. §§ 841(b)(1)(A), 846; 18 U.S.C. § 2. The jury was unable to reach a

verdict on the charge of robbery, see 18 U.S.C. § 1951(a), and returned a special

verdict that found Gilart’s offense involved less than five kilograms of cocaine.

The district court sentenced Gilart to 210 months of imprisonment and three

years of supervised release for the offense of conspiracy to possess with intent to
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distribute five kilograms or more of cocaine, but after Gilart appealed that

sentence, we remanded for resentencing in the light of United States v. Booker,

543 U.S. __, 125 S. Ct. 738 (2005). At resentencing, Gilart made the following

three arguments: (1) the enhancements for possessing a firearm and for drug

quantity were improper because the enhancements were based on conduct for

which he had been acquitted by the jury and the jury had returned a special verdict

finding that his offense involved less than five kilograms of cocaine; (2) a sentence

enhanced on the basis of acquitted conduct and contrary to the special verdict

would be unreasonable; and (3) applying the Booker remedy of an advisory

guidelines scheme to sentence him based on facts that were neither proved to a jury

nor admitted by him violated his rights under the Ex Post Facto and Due Process

Clauses of the U.S. Constitution. 

The district court rejected Gilart’s arguments. The district court reasoned

that the enhancement for drug quantity was proper because the conviction for

conspiracy to possess cocaine was for 20 to 30 kilos and “that’s what was talked

about.” The district court stated that it found Gilart’s criminal background

“abysmal” and was especially concerned with his history of armed home invasions. 

After stating it had considered the advisory guidelines computations in the

Presentencing Investigative Report, the statements of the parties, and the statutory
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factors, see 18 U.S.C. 3553(a)(1)-(7), the district court imposed an amended

sentence of 210 months of imprisonment and three years of supervised release. 

II. STANDARD OF REVIEW

We review de novo a claim of constitutional sentencing error but will

reverse only for harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th

Cir. 2005). We review de novo the application by the district court of the

Sentencing Guidelines, and findings of fact for clear error, United States v.

Trujillo, 146 F.3d 838, 847 (11th Cir. 1998); Booker does not change this standard

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

review for reasonableness a sentence imposed by the district court under the

advisory guidelines. Crawford, 407 F.3d at 1178. “We review a district court’s

determination of the quantity of drugs used to establish a base offense level for

sentencing purposes under the clearly erroneous standard,” United States v.

Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000), and “cannot find clear error unless

‘we are left with a definite and firm conviction that a mistake has been

committed.’” Crawford, 407 F.3d at 1177 (quoting Glassroth v. Moore, 335 F.3d

1282, 1292 (11th Cir. 2003)). 

III. DISCUSSION

Gilart now appeals his sentence, and he makes four unsuccessful arguments. 
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We discuss each in turn.

A. It Was Not Error to Apply the Guidelines as Advisory.

Gilart argues that, because he committed his crime after Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), but before Booker, 543 U.S.

—, 125 S. Ct. 738, the district court violated Gilart’s rights under the ex post facto

principle of fair warning in the Due Process Clause when it sentenced him based

on post-verdict findings of fact and retroactively applied the sentencing guidelines

as advisory. Gilart concedes that we have rejected this argument. See United

States v. Duncan, 400 F.3d 1297 (11th Cir. 2005). Because “only the Supreme

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

United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004), this argument fails. 

B. It Was Not Error to Enhance Gilart’s Sentence Based on Acquitted Conduct.

Gilart also argues that, if it was not error to apply the Sentencing Guidelines

as advisory, that it was error under the advisory guidelines to enhance his sentence

based on acquitted conduct and conduct that contradicted the special jury verdict. 

Again, Duncan controls this issue: “Booker does not suggest that the consideration

of acquitted conduct violates the Sixth Amendment as long as the judge does not

impose a sentence that exceeds what is authorized by the jury verdict.” 400 F.3d at

1304. The only requirement is that the government “proves the acquitted conduct
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relied upon by a preponderance of the evidence.” Id. (quoting United States v.

Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997)). Because the district court found

by a preponderance of the evidence that the quantity of drugs was 20 to 30

kilograms and Gilart possessed a gun during execution of the crime, Gilart’s

argument fails. 

C. The District Court Did Not Improperly Calculate Drug Quantity. 

Gilart argues that, even if it was not error to enhance his sentence based on

acquitted conduct, the finding of the district court as to drug quantity was not

supported by a preponderance of the evidence. He argues that the evidence does

not prove by a preponderance of the evidence either that his primary focus was to

steal money rather than drugs or that he intended to conspire to steal 20 to 30

kilograms of cocaine. We disagree. First, if the jury believed Gilart meant to steal

money rather than drugs, then it would not have convicted Gilart of conspiracy to

possess cocaine. Second, it was not clear error for the district court to find that the

amount of cocaine was 20 to 30 kilograms because that is the amount that was

discussed during the conspiracy. 

D. Gilart’s Sentence Was Reasonable.

Gilart complains that his sentence was unreasonable because the district

court enhanced the sentence based on acquitted conduct, did not account for the
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special jury verdict, did not account for mitigating personal characteristics, and did

not consider the factors in section 3553(a)(1)-(7) as required by Booker. See 18

U.S.C. § 3553; Booker, 543 U.S. at __, 125 S. Ct. at 764-65. We disagree. The

district court accounted for the special jury verdict by finding that the jury was

confused as to the amount of drugs it could attribute to Gilart as there were no

actual drugs. The district court also stated that it had considered “the factors set

forth in [section 3553(a)(1)-(7)].” Although “nothing 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), the district court specifically

considered Gilart’s criminal history and characterized it as “abysmal” and

“horrible.” The district court also considered “the presentence report which

contains the advisory guidelines.” The sentencing guideline range for Gilart’s

offense, as calculated in the PSI, was 235 to 293 months, or 235 to 240 months

because of the statutory maximum. The district court imposed a sentence of 210

months of imprisonment. We cannot say that Gilart’s sentence is unreasonable. 

IV. CONCLUSION

We affirm Gilart’s sentence. 

AFFIRMED.