[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              January 3, 2008
                             No. 07-11181                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 06-14070-CR-KMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

FREDERICK GRANT BALLARD,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (January 3, 2008)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Frederick Grant Ballard appeals his sentence, imposed after he pled guilty to

possession with intent to distribute methamphetamine and possession of a firearm

by a convicted felon, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 922(g)(1). Ballard argues that (1) the district court violated Apprendi v. New

Jersey, 

, 

, 

(2000), and its progeny in

determining the amount of methamphetamine for which he was responsible;

(2) used an amount of methamphetamine not supported by the evidence; and

(3) imposed a procedurally unreasonable sentence. For the reasons set forth more

fully below, we affirm.

      Ballard was charged by information that was silent as to the amount of

methamphetamine involved in his offense. At his change-of-plea hearing, the

government indicated that it could prove that 1.9 grams of actual

methamphetamine were confiscated from Ballard’s home. In a presentence

investigation report (“PSI”), the probation officer indicated that a Drug

Enforcement Agency (“DEA”) lab report showed that 31.5 grams of a substance

containing methamphetamine, namely 1.9 grams of actual methamphetamine, were

confiscated from Ballard’s home. Accordingly, the PSI set Ballard’s base offense

level at 22. In his objections to the PSI, Ballard argued that he should not be

sentenced according to the total weight of the substance confiscated, since he pled



                                          2
guilty only in reference to the amount of actual methamphetamine found therein,

such that his base offense level should be set at 18. Ballard alternatively objected

that the substance confiscated weighed less than 30 grams.

      At his sentencing hearing, Ballard indicated that his was “purely a legal

objection” based on Apprendi and did not pursue any alternative argument that the

substance confiscated weighed less than 30 grams. The district court overruled the

legal objection and adopted the PSI. Also at this hearing, Ballard indicated that he

was addicted to methamphetamine and requested drug treatment while

incarcerated. The district court acknowledged that it had considered these

statements, the PSI, the advisory Sentencing Guidelines, and “other factors” and

imposed a 57-month sentence. The district court also ordered that Ballard receive

substance abuse counseling while incarcerated.

                                    I. Apprendi

      Pursuant to 21 U.S.C. § 841(b), a defendant found guilty of an offense

involving 50 grams or more of methamphetamine or 500 grams or more of a

mixture containing methamphetamine is subject to a term of imprisonment

between 10 years and life. 21 U.S.C. § 841(b)(1)(A)(viii). A defendant found

guilty of an offense involving 5 grams or more of methamphetamine or 50 grams

or more of a mixture containing methamphetamine is subject to a term of



                                          3
imprisonment between 5 and 40 years. 21 U.S.C. § 841(b)(1)(B)(viii). A

defendant found guilty of an offense involving any other amount of

methamphetamine or a mixture containing methamphetamine is subject to a term

of imprisonment no greater than 20 years. 21 U.S.C. § 841(b)(1)(C).

      In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

, 120 S.Ct. at 2362-64. In Blakely v. Washington, 

, 301, 303-04, 

, 2536, 2537, 

(2004), the

Supreme Court clarified that the relevant “statutory maximum for Apprendi

purposes is the maximum a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.”

      In United States v. Booker, 

, 243-44, 

, 755-56,

(2005), the Supreme Court applied Blakely to the Guidelines and

reaffirmed that “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by a

plea of guilty or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.” The Booker Court also held that the Guidelines

are advisory. 

125 S.Ct. at 765. Accordingly, after Booker, there are two



                                          4
types of error that a district court might commit in sentencing a defendant:

constitutional error, which “occurs when extra-verdict enhancements are used to

reach a result under [the Guidelines] that is binding on the sentencing judge,” and

statutory error, which “consists in sentencing a defendant under the Guidelines as

if they were mandatory and not advisory, even in the absence of a Sixth

Amendment violation.” United States v. Lee, 

, 891 (11th Cir. 2005),

cert. denied, 

(2006).

      In United States v. Burge, 

, 1191 (11th Cir.), cert. denied, 

(2005), we considered whether the district court had violated Blakely by

applying a firearm-enhancement. We noted that, while the defendant had

challenged the enhancement in his objections to the PSI, he had abandoned the

challenge at his sentencing hearing and, therefore, had impliedly admitted the facts

necessary for the enhancement. 

that application of the

enhancement was not unconstitutional. 

court did not commit constitutional error under Apprendi and its

progeny. The district court did not impose a sentence beyond that authorized by

the facts established by Ballard’s guilty plea. See Apprendi, 530 U.S. at 

; 

, 125 S.Ct. at 755-56. In

pleading guilty to possession with intent to distribute any quantity of


                                           5
methamphetamine, Ballard became subject to up to 20 years’ imprisonment. See

21 U.S.C. § 841(b)(1)(C). Ballard’s ultimate 57-month sentence did not exceed

this statutory maximum. Moreover, Ballard admitted his responsibility for 31.5

grams of methamphetamine. See 

. At his sentencing

hearing, Ballard expressly stated that his was a legal objection based on Apprendi.

Therefore, he abandoned any objection to the PSI’s factual drug-amount finding.

See 

.1 The district court also did not commit statutory

error under Apprendi and its progeny. At the sentencing hearing, the district court

expressly stated that it had treated the Guidelines as advisory. Accordingly, we

affirm Ballard’s sentences as to this issue. See 

, 

, 765.

                                       II. Drug Amount

       When a defendant raises a sentencing objection for the first time on appeal,

as here, we review for plain error. United States v. Dorman, 

, 942

(11th Cir.), cert. denied, 

(2007). The Guidelines’ drug quantity table

sets the base offense level for offenses involving at least 30 grams, but less than 40


       1
         While Ballard did raise an alternative objection that he was responsible for less than 30
grams of methamphetamine in response to the PSI, he expressly stated at the sentencing hearing
that he had only a legal objection and did not pursue any arguments as to the alternative
objection. In any event, as noted above, Ballard was sentenced well within the statutory
maximum of 20 years’ imprisonment applicable to an offense involving any quantity of
methamphetamine. See 21 U.S.C. § 841(b)(1)(C).

                                                 6
grams, of methamphetamine, or at least 3 grams, but less than 4 grams of

methamphetamine (actual), at 22. U.S.S.G. § 2D.1(a)(3). The drug quantity table

sets the base offense level for offenses involving at least 10 grams, but less than 20

grams, of methamphetamine, or at least 1 gram, but less than 2 grams, of

methamphetamine (actual), at 18. 

the commentary to the drug

quantity table, the term “Methamphetamine (actual)” refers to the weight of the

controlled substance contained in the mixture or substance in question. U.S.S.G.

§ 2D1.1, Drug Quantity Table, comment. (n. B). Also pursuant to the commentary,

when an offense involves a mixture or substance of methamphetamine, the district

court should “use the offense level determined by the entire weight of the mixture

or substance, or the offense level determined by the weight of the

. . . methamphetamine (actual), whichever is greater.” 

defendant fails

to object to a finding of fact contained in the PSI, the district court is entitled to

rely upon that finding. United States v. Perez-Tosta, 

, 1564 (11th

Cir. 1994).

       The evidence supports the district court’s finding that Ballard was

responsible for 31.5 grams of methamphetamine. The PSI stated that a DEA lab

report indicated that the substance confiscated from Ballard’s home weighed 31.5

grams. Ballard has conceded that the lab report included this amount and has not


                                             7
argued that the report was not credible. Furthermore, Ballard has provided no

argument as to why he should be held responsible for less than 31.5 grams of

methamphetamine. Moreover, to the extent the district court relied on the PSI’s

factual finding as to drug amount, it was entitled to do so, as Ballard had

abandoned any objection to this finding of fact. See 

.

The record also supports the district court’s decision to hold Ballard responsible

for 31.5 grams of methamphetamine, rather than 1.9 grams of actual

methamphetamine. The base offense level for a defendant responsible for 31.5

grams of methamphetamine is higher than that for a defendant responsible for 1.9

grams of actual methamphetamine. See U.S.S.G. § 2D1.1(c). Accordingly, the

district court did not commit plain error in determining the appropriate drug

amount, and we affirm Ballard’s sentences as to this issue. See 

.

                          III. Procedural Reasonableness

      We can review a sentence for procedural or substantive unreasonableness.

United States v. Hunt, 

, 1182 n.3 (11th Cir. 2006). A sentence may

be procedurally unreasonable if it is the product of a procedure that does not

follow Booker’s requirements, regardless of the actual sentence. 

may be substantively unreasonable, regardless of the procedure used. 

determining if the district court imposed a reasonable sentence, we refer

to the factors set out in § 3553(a). United States v. Martin, 

, 1237

(11th Cir. 2006). Pursuant to § 3553(a), the sentencing court shall impose a

sentence “sufficient, but not greater than necessary” to comply with the purposes

of sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the

offense, promoting respect for the law, providing just punishment for the offense,

deterring criminal conduct, protecting the public from future criminal conduct by

the defendant, and providing the defendant with needed educational or vocational

training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the

sentencing court to consider certain factors, including the nature and circumstances

of the offense, the history and characteristics of the defendant, the guideline

imprisonment range, and the need to avoid unwarranted sentencing disparities. See

18 U.S.C. § 3553(a)(1), (4), and (6).

      We do not require the district court to discuss or to state that it has explicitly

considered each factor of § 3553(a). United States v. Talley, 

, 786

(11th Cir. 2005). Instead, an explicit acknowledgment that the district court has

considered the defendant’s arguments and the § 3553(a) factors will suffice.

United States v. Scott, 

, 1329-30 (11th Cir. 2005). Also, we have

upheld a sentence as reasonable, even though the district court failed to articulate


                                           9
that it had considered any of the § 3553(a) factors, because the record made clear

that the district court had considered the relevant factors, as it had considered the

defendant's objections and a motion for downward departure filed by the

dependant. 

. Indeed, the Supreme Court recently

explained that, “when the record makes clear that the sentencing judge considered

the evidence and arguments,” the district court need not explain its choice of

sentence beyond a brief statement, especially when a case is conceptually simple.

Rita v. United States, - - U.S. - -, 

, 2469, 

(2007).

      While the district court did not expressly acknowledge that it had considered

the § 3553(a) factors, the record indicates that the district court considered all

relevant evidence. See 

; Rita, - - U.S. at - 

. The district court explicitly acknowledged that it had considered the PSI and

the Guidelines. The district court also explicitly acknowledged that it had

considered Ballard’s explanation that he was addicted to methamphetamine and

request of drug treatment. Accordingly, the district court considered the need to

provide medical care and the nature and characteristics of Ballard. See 18 U.S.C.

§ 3553(a)(1), (2). Moreover, Ballard has not argued, and the record does not

demonstrate, that any factor of this case was complex, such that an extensive

explanation of the district court's choice of sentence was required. See Rita, - -

U.S. at - 

. Accordingly, Ballard’s sentence was not

procedurally unreasonable, and we affirm his sentences as to this issue.

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AFFIRMED.




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