USA v. Mercedes Suarez, No. 05-11037 (11th Cir. 2006)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 05-11037 FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 8, 2006 THOMAS K. KAHN CLERK D. C. Docket No. 04-20606 CR-MGC UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MERCEDES SUAREZ, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Florida (June 8, 2006) Before DUBINA and KRAVITCH, Circuit Judges, and MILLS*, District Judge. PER CURIAM: ________________________ *Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by designation. Appellant Mercedes Suarez ( Suarez ) appeals her 24-month sentence imposed after a jury convicted her of one count of using unauthorized access devices, 18 U.S.C. § 1029(a)(2), and two counts of using a false social security number in a credit card application, 42 U.S.C. § 408(a)(7)(B). On appeal, Suarez argues that the district court violated her ex post facto, due process and indictment clause rights by sentencing her under an advisory, as opposed to a mandatory guidelines regime. The issues presented on appeal are (1) whether the district court s imposition of sentence and retroactive application of Booker violated ex post facto and due process principles; and (2) whether the district court s retroactive application of Booker1 violated the defendant s Fifth Amendment indictment clause right. We review constitutional challenges to a sentence de novo. United States v. Chau, 426 F.3d 1318, 1321 (11th Cir. 2005). After reviewing the record and reading the parties briefs, we affirm Suarez s sentence based on our recent cases of United States v. Thomas, No. 0514151 (11th Cir. Apr. 26, 2006) and United States v. DeArmas, No. 05-11896 1 United States v. Booker, 543 U.S. 220 (2005). 2 (11th Cir. May 8, 2006), where we rejected the same arguments Suarez makes here. AFFIRMED. 3

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