FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 8, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11896

Non-Argument Calendar

________________________

D. C. Docket No. 04-00562-CR-T-30-MAP

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GERMAN DE ARMAS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (May 8, 2006)

ON PETITION FOR REHEARING

Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:
We have already rejected the government’s argument that we do not have jurisdiction to 1

review the reasonableness of a sentence within the advisory Guidelines range. See United States

v. Martinez, --- F.3d ---, 2006 WL 39541 *3 (11th Cir. Jan. 9, 2006) (rejecting government’s

argument that this Court lacks jurisdiction to review sentences for reasonableness under 18 U.S.C.

2

No judge in regular active service on the Court having requested that the

Court be polled on rehearing en banc, Fed. R. App. P. 35, accordingly, rehearing

en banc is DENIED. Appellant’s petition for panel rehearing is GRANTED. We

VACATE our prior opinion in this case and substitute the following in its place:

German De Armas appeals his 135-month sentence and convictions for

possession with intent to distribute 5 kilograms or more of a mixture and substance

containing a detectable amount of cocaine while on board a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. App. § 1903(a), (g), and

21 U.S.C. § 960(b)(1)(B)(ii) (Count 1), and conspiracy to possess with intent to

distribute 5 kilograms or more of a mixture and substance containing a detectable

amount of cocaine while on board a vessel subject to the jurisdiction of the United

States, in violation of § 1903, (a), (g), (j), and § 960(b)(1)(B)(ii) (Count 2). The

135-month sentence De Armas received was the lowest possible term within the

applicable 135 to 168 months’ advisory Guidelines range. 

On appeal, De Armas argues that: (1) his sentence was unreasonable in light

of the 18 U.S.C. § 3553(a) factors and the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005); and (2) the district court’s imposition of 1
§ 3742); see also United States v. Mickelson, --- F.3d ---, 2006 WL 27687 *2 (8th Cir. Jan. 6, 2006)

(same). 

 As for De Armas’s argument that the district court lacked subject-matter jurisdiction 2

over the instant case because the Maritime Drug Law Enforcement Act (“MDLEA”) represented an

ultra vires exercise of Congressional power under the Piracies and Felonies Clause of the

Constitution, after de novo review, we discern no error. Cf. United States v. Perez, 956 F.2d 1098,

1011 (11th Cir. 1992) (reviewing issue of district court’s subject matter jurisdiction de novo). The

Constitution empowers Congress “[t]o define and punish Piracies and Felonies on the high Seas, and

Offenses against the Law of Nations.” U.S. Const., art. I, § 8, cl. 10. We have noted that “this

circuit and other circuits have not embellished the MDLEA with [the requirement of] a nexus

[between a defendant’s criminal conduct and the United States].” United States v. Rendon, 354 F.3d

1320, 1325 (11th Cir. 2003), cert. denied, 541 U.S. 1035 (2004); see also United States v. MorenoMorillo, 334 F.3d 819, 824 (9th Cir. 2003) (holding that Congress acted within constitutionally

conferred authority in enacting MDLEA); United States v. Ledesma-Cuesta, 347 F.3d 527, 532 (3d

Cir. 2003) (“Congress had authority to enact [the MDLEA], pursuant to its constitutional power to:

‘define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law

of Nations.’ Inasmuch as the trafficking of narcotics is condemned universally by law-abiding

nations, we see no reason to conclude that it is ‘fundamentally unfair’ for Congress to provide for

the punishment of persons apprehended with narcotics on the high seas.” (quoting United States v.

Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993))). Simply put, the district court did not err

by failing to hold sua sponte that the MDLEA was unconstitutional because Congress had exceeded

its authority under the Piracies and Felonies Clause. 

We also must reject DeArmas’s argument that the MDLEA is unconstitutional in light of

United States v. Gaudin, 515 U.S. 506 (1995). As De Armas recognizes, we expressly addressed

and rejected his position in United States v. Tinoco, 304 F.3d 1088 (11th Cir. 2002). Because “only

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

must follow Tinoco. See United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004) (discussing

prior-precedent rule).

3

sentence and retroactive application of Booker violated ex post facto and due

process principles. After careful review, we affirm. 2

We “review for unreasonableness” a sentence imposed post-Booker.

Booker, 543 U.S. at ___, 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
 In support of this claim, De Armas highlights the presence of the following factors as 3

supporting a sentence below the advisory Guidelines range: (1) he has no criminal history; (2) the

sentence that he suggested, 108 months’ imprisonment, adequately would have reflected the

seriousness of the offense and provided both specific and general deterrence; (3) he played a small

role in a large conspiracy; (4) he received a significantly higher sentence than his codefendants

based solely on the fact that he was the captain of the vessel; and (5) his base offense level was the

same base offense level as that of a “‘kingpin’ of a large-scale organization,” even though he had

no equity or ownership interest in the drugs, was not earning a commission off of the sale of the

drugs, and did not have a leadership position in the larger drug organization

4

on a defendant”). In making our reasonableness review, we consider the final

sentence, in its entirety, in light of the § 3553(a) factors. See United States v.

Winningear, 422 F.3d 1241, 1245 (11th Cir. 2005) (“We do not apply the

reasonableness standard to each individual decision made during the sentencing

process; rather, we review the final sentence for reasonableness.”). We review de

novo a defendant’s claim that his sentence violated ex post facto principles. See

United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir. 2004), cert denied, 126

S. Ct. 417 (2005).

First, De Armas argues that his sentence was unreasonable in light of the

§ 3553(a) factors and the Supreme Court’s decision in Booker. As for his claim 3

that the district court did not adequately consider all of the § 3553(a) factors, we

recently held that “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,
5

1329 (11th Cir. 2005). Accordingly, a district court’s failure to express reference

each and every one of the § 3553(a) factors does not constitute error under Booker.

In any event, here, at the sentencing hearing, the district court expressly

stated that it had considered all of the factors in § 3553(a). Although the district

court did not detail the weight that it had accorded to each individual sentencing

factor, it was not required to do so. See Scott, 426 F.3d at 1329. On this record,

we are satisfied with the district court’s express statements that it had considered

De Armas’s codefendants’ sentences, see § 3553(a)(6), as well as the facts that De

Armas had no equity interest in the drugs, no role in the distribution of the drugs,

and no role in the planning of the conspiracy. All of these facts were raised before

the district court and plainly the court considered them. Simply put, De Armas’s

sentence was not unreasonable and is fully supported by the district court’s

sentencing considerations and factual findings. We can find no Booker error in the

district court’s consideration of the § 3553(a) factors here.

We likewise are unpersuaded by De Armas’s argument that the district court

violated ex post facto and due process principles when it sentenced him to 135

months’ imprisonment because the maximum sentence that the district court could

have imposed based solely on the facts charged in the indictment was 87 months’
To the extent De Armas suggests that the district court violated his Sixth Amendment 4

rights by enhancing his sentence based on facts that were not alleged in his indictment or admitted

by him, the district court did not err by finding facts supporting extra-verdict enhancements since

it sentenced De Armas under an advisory guidelines scheme. See United States v. Chau, 426 F.3d

1318, 1323-24 (11th Cir. 2005) (rejecting a defendant’s argument that, under an advisory guidelines

scheme, the Sixth Amendment prohibits a sentencing court from finding facts supporting extraverdict enhancements). 

6

imprisonment. De Armas recognizes that we rejected a similar argument in 4

United States v. Duncan, 400 F.3d 1297 (11th Cir.), cert. denied, 126 S. Ct. 432

(2005). In that case, the defendant argued that retroactively applying the remedial

holding of the Booker decision -- which allows for sentence enhancements based

upon judicial fact-finding so long as the guidelines are applied in an advisory

manner -- did not give him “fair warning” of the potential sentence, and thus, acted

as an ex post facto law, in violation of his due process rights. Duncan, 400 F.3d at

1307. 

In Duncan, like here, the essence of the defendant’s argument sought

retroactive application of Booker’s Sixth Amendment holding, but not its remedial

holding. Id. at 1306. We concluded Duncan had “sufficient warning” that life

imprisonment was a potential consequence to his actions to satisfy due process and

ex post facto concerns because, at the time of the offense, (1) the applicable statute

provided for a sentence of life imprisonment; (2) the Guidelines provided that a

judge would engage in fact-finding to determine sentence and could impose a
The “fair warning” factors of Duncan also are present here. When De Armas committed 5

the drug offenses, (1) the maximum term of imprisonment for De Armas’ offenses was life

imprisonment, see 21 U.S.C. § 960(b)(1)(B)(ii); (2) the Guidelines informed De Armas that a judge

would engage in fact-finding to determine his sentence and could impose a sentence of up to life

imprisonment, see 18 U.S.C. § 3551, et seq. (providing that the sentencing court could consider

specified factors, including the guidelines, in imposing sentence); and (3) the relevant maximum at

the time when De Armas committed his offense was the statutory maximum enacted in the United

States Code, not the maximum established pursuant to the guidelines. See Duncan, 400 F.3d at

1308. 

7

sentence of life imprisonment; and (3) although mandatory Guidelines were in

place, the law of this Circuit then recognized the United States Code as the source

of the maximum sentence, which, in Duncan’s case, was a life sentence. Id. at

1307-08. De Armas recognizes that our holding in Duncan is dispositive here and 5

suggests that Duncan was wrongly decided. According to our well-established

prior-precedent rule, “[o]nly the Supreme Court or this Court sitting en banc can

judicially override a prior panel decision.” United States v. Wright, 392 F.3d

1269, 1280 (11th Cir. 2004) (internal quotations and citations omitted), cert.

denied, 125 S.Ct. 1751 (2005). Thus, pursuant to Duncan, we find no ex post facto

or due process violation based on application of the Booker decision.

AFFIRMED.