FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 9, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15481

Non-Argument Calendar

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D. C. Docket No. 02-00458-CR-T-17-TGW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MARLO KEVIN MCELROY, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 9, 2006)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

Defendant-appellant Marlo Kevin McElroy pleaded guilty to possession
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with intent to distribute five grams or more of crack cocaine, in violation of 21

U.S.C. § 841. There was no written plea agreement. The government gave notice

that the penalties for possession were a mandatory minimum sentence of five years

imprisonment and a statutory maximum sentence of forty years imprisonment

under § 841(b)(1)(B). 

The underlying facts of the case are these: While conducting surveillance in

the park, police observed McElroy pull a paper napkin from his pocket; the napkin

contained a plastic bag with pieces of crack. McElroy sold some of the crack to his

codefendant, who then sold the crack to a man in a car. When police moved in,

McElroy ran and threw the napkin to the ground. McElroy refused to stop when

ordered to do so, and police were forced to subdue him with pepper spray. Police

retrieved the napkin, which lab tests confirmed contained 6.2 grams of crack. 

McElroy disputed the amount of crack, and a subsequent lab test showed the

amount equaled 5.9 grams. He admitted, however, that he possessed and sold a

substance he knew to be crack cocaine. At the change-of-plea hearing, the

magistrate judge determined that McElroy had pleaded to the essential elements,

even if he disputed some of the factual proffer. The magistrate judge also ensured

that McElroy understood that he faced a mandatory minimum sentence of five

years imprisonment and a maximum sentence of forty years imprisonment. 
 Under U.S.S.G. § 2D1.1(c)(7), the base offense level is 26 for offenses involving at least 1

5 grams but less than 20 grams of crack. Thus, even though the probation officer listed the amount

for which McElroy was responsible as 6.2 grams - and McElroy asserts that the proper amount was

5.9 grams - the discrepancy is not relevant for purposes of calculating the range. Notably, the

district court sustained the objection at sentencing.

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McElroy indicated his “concern” over the five-to-forty years, but reaffirmed his

intent to plead guilty. The court accepted the plea on the magistrate judge’s

recommendation. 

The probation officer prepared a presentence investigation report (“PSI”),

assigning a base offense level of 26 under U.S.S.G. § 2D1.1(c)(7). The probation 1

officer then listed McElroy’s prior felony convictions for crimes of violence and a

controlled substance offense, qualifying McElroy as a career offender under

U.S.S.G. § 4B1.1. Because the statutory maximum penalty was 40 years

imprisonment, the offense level was increased to 34 under § 4B1.1. With a threelevel reduction for acceptance of responsibility, the total offense level was 31. The

probation officer determined that McElroy had numerous prior convictions, which

resulted in 10 criminal history points and a criminal history category V, but which

was increased to VI under the career-offender provision. The resulting guidelines

range was 188 to 235 months imprisonment. 

McElroy objected to, inter alia, the application of the career offender

provision on the ground that the failure to list the prior convictions in the
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indictment resulted in Sixth Amendment and due process violations. He further

argued that he had no notice that he faced enhanced penalties under § 4B1.1. 

At sentencing, McElroy conceded that the application of the career-offender

provision was correct, but he claimed that it over-represented his crime and his

criminal history. He noted the discrepancies between the calculated guidelines

range and the sentences he faced if his guidelines range was calculated without the

prior convictions (that were not charged in the indictment) or if he was sentenced

based on his actual criminal history points. He further argued that the two

predicate offenses should not count, as he had only pleaded guilty because the state

offered him “sweetheart” deals. He urged the court to use its discretion to sentence

him below the guidelines range. The district court overruled the objection, finding

that the guidelines were properly calculated. 

McElroy next argued that he should not be considered a career offender

because he was not told at the time he entered his plea that he faced an enhanced

sentence. The court rejected this argument, stating that McElroy had been advised

that the guidelines applied, and he was aware of his own criminal history. The

court then granted the government’s motion for a one-point reduction based on

substantial assistance, U.S.S.G. § 5K1.1, and added an additional one-point

reduction. With a total offense level of 29, the guidelines range became 151 to 188
 This court has rejected the government’s argument that a sentence within the guidelines 2

range is presumptively reasonable. United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.

2005) (holding that sentences within the range are not per se reasonable). 

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months. Considering the guidelines range and the sentencing factors of 18 U.S.C.

§ 3553(a), the court sentenced McElroy to 151 months imprisonment, which it

found to be sufficient, but not greater than necessary, to achieve the sentencing

goals. McElroy now appeals, challenging (1) whether the sentence imposed was

reasonable, and (2) whether the court was required to give him actual written

notice before applying enhanced penalties for his status as a career offender.

A. Reasonableness

McElroy argues that his status as a career offender greatly increased the

guidelines range, rendering his sentence unfair. 

After Booker, we review a defendant’s sentence for reasonableness. United 2

States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005); United States v.

Crawford, 407F.3d 1174, 1179 (11th Cir. 2005). Additionally, the district court is

still required to correctly calculate the guidelines range. See United States v. Lee,

427 F.3d 881, 892 (11th Cir. 2005). McElroy bears the burden of showing that his

sentence was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005).

Here, the sentence imposed was reasonable. First, the court imposed
 These factors include the available sentences, the calculated guideline range, the nature 3

and circumstances of the offense, and the need for the sentence to reflect the seriousness of the

offense, promote respect for the law, and provide just punishment for the offense. 18 U.S.C. §

3553(a).

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sentence at the bottom of the guidelines range, and this sentence fell well below the

statutory maximum of forty years imprisonment. United States v. Martinez, 434

F.3d 1318, 1322 (11th Cir. 2006); Winingear, 422 F.3d at 1246. Second, the court

departed downward another point in addition to the reduction for substantial

assistance. Moreover, the court considered McElroy’s lengthy criminal history,

which had resulted in a criminal history category V without the career-offender

enhancement. The court then considered the sentencing factors of § 3553(a) and

determined that a sentence at the low end of the range was sufficient to meet these

factors. Although the court did not state the weight given to each factor, it was 3

not required to do so. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

2005); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005). McElroy

has offered nothing to show that his sentence was unreasonable. 

B. Notice

McElroy next argues that his due process rights were violated when the

court failed to advise him at the time of his plea that he faced an enhanced sentence

based on his status as a career-offender. He contends that notice of possible

career-offender status is required just as notice of enhanced penalties is required
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under 21 U.S.C. § 851. 

Whether the application of the guidelines violates due process is a question

of law subject to de novo review. United States v. Johns, 984 F.2d 1162, 1163

(11th Cir. 1993).

This court has rejected McElroy’s claim that he was entitled to notice before

his sentence was enhanced based on his status as a career offender, Young v.

United States, 936 F.2d 533, 536 (11th Cir. 1991), and McElroy has cited no

authority for his argument. Moreover, McElroy was aware of the maximum

penalty he faced, and the sentence imposed fell well below the maximum.

Accordingly, for the foregoing reasons, we AFFIRM.