United States v. Heriberto Ortiz , 536 F. App'x 893 ( 2013 )


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  •              Case: 12-16474     Date Filed: 09/10/2013   Page: 1 of 10
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-16474
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:12-cr-20406-MGC-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    HERIBERTO ORTIZ,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (September 10, 2013)
    Before CARNES, Chief Judge, BARKETT and ANDERSON, Circuit Judges.
    PER CURIAM:
    Heriberto Ortiz appeals his concurrent 240-month sentences for one count of
    conspiring to possess with intent to distribute over five kilograms of cocaine
    Case: 12-16474     Date Filed: 09/10/2013   Page: 2 of 10
    (Count 1), in violation of 
    21 U.S.C. §§ 846
    , 841(a)(1), (b)(1)(A)(ii); and one count
    of conspiracy to interfere with commerce by robbery (Count 3), in violation of 
    18 U.S.C. § 1951
    (a), (b)(1), (b)(3). On appeal, Ortiz argues that the district court
    erred in treating his 2006 felony conviction for using a vehicle to flee and elude a
    police officer as a predicate offense for application of the career offender
    sentencing guidelines. He also argues that his 240-month total sentence, which
    represents a 22-month downward variance from the advisory guideline range, was
    substantively unreasonable.
    I. Whether Ortiz’s Prior Conviction is a Crime of Violence
    We review de novo whether a particular prior conviction is a crime of
    violence under the career offender guidelines. United States v. Lockley, 
    632 F.3d 1238
    , 1240 (11th Cir.), cert. denied, 
    132 S.Ct. 257
     (2011). “The law of this circuit
    is ‘emphatic’ that only the Supreme Court or this court sitting en banc can
    judicially overrule a prior panel decision.” Cargill v. Turpin, 
    120 F.3d 1366
    , 1386
    (11th Cir. 1997).
    A defendant is a “career offender” if, among other requirements, at the time
    of his instant offense of conviction he had “at least two prior felony convictions of
    either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
    Under the career offender guidelines, a “crime of violence” is one that
    (1)    has as an element the use, attempted use, or threatened use of
    physical force against the person of another, or
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    (2)    is burglary of a dwelling, arson, or extortion, involves the use
    of explosives, or otherwise involves conduct that presents a
    serious potential risk of physical injury to another.
    Id. § 4B1.2(a)(1)–(2); see United States v. Chitwood, 
    676 F.3d 971
    , 975 (11th
    Cir.), cert. denied, 
    133 S.Ct. 288
     (2012) (stating that a crime of violence must fit
    into one of three categories: crimes covered under the “elements clause” of
    § 4B1.2(a)(1), the “enumerated crimes clause” of § 4B1.2(a)(2), or the “residual
    clause” crimes of § 4B1.2(a)(2)). Because the Armed Career Criminal Act
    (ACCA) provides a definition of a “violent felony” that is virtually identical to the
    definition of a crime of violence under the career offender guidelines, we have
    indicated that “decisions about one apply to the other.” Gilbert v. United States,
    
    640 F.3d 1293
    , 1309 n.16 (11th Cir. 2011) (en banc), cert. denied, 
    132 S.Ct. 1001
    (2012).
    We apply a categorical approach in determining whether a prior conviction
    is a crime of violence for purposes of the career offender guidelines. Lockley, 
    632 F.3d at 1240
    . In applying the categorical approach to the residual clause, we ask
    whether the offense at issue inherently “poses a serious potential risk of physical
    injury that is similar in kind and in degree to the risks posed by the enumerated
    crimes.” United States v. Owens, 
    672 F.3d 966
    , 968 (11th Cir. 2012) (quotation
    omitted); see Chitwood, 
    676 F.3d at 977
     (looking “only to the fact of conviction
    and the statutory definition of the prior offense, and not to the particular facts
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    disclosed by the record of conviction” (quotation omitted)). We examine the
    underlying facts of a conviction “only if ambiguities in the [judgment] make the
    crime of violence determination impossible from the face of the judgment itself.”
    Lockley, 
    632 F.3d at 1240
     (quotation omitted).
    Florida has three different subsections covering the use of a vehicle to flee or
    elude a police officer. 
    Fla. Stat. § 316.1935
    (1) provides:
    It is unlawful for the operator of any vehicle, having knowledge that
    he or she has been ordered to stop such vehicle by a duly authorized
    law enforcement officer, willfully to refuse or fail to stop the vehicle
    in compliance with such order or, having stopped in knowing
    compliance with such order, willfully to flee in an attempt to elude the
    officer, and a person who violates this subsection commits a felony of
    the third degree . . . .
    
    Fla. Stat. § 316.1935
    (1) (2006). Section 316.1935(2) provides:
    Any person who willfully flees or attempts to elude a law enforcement
    officer in an authorized law enforcement patrol vehicle, with agency
    insignia and other jurisdictional markings prominently displayed on
    the vehicle, with siren and lights activated commits a felony of the
    third degree . . . .
    
    Id.
     § 316.1935(2) (2006); see United States v. Petite, 
    703 F.3d 1290
    , 1292 (11th
    Cir. 2013) (describing an offense under § 316.1935(2) as “simple vehicle flight”),
    pet. for cert. filed, (U.S. June 13, 2013) (No. 12-10831). Simple vehicle flight is a
    lesser included offense of the next subsection covering fleeing and eluding police
    officers, 
    Fla. Stat. § 316.1935
    (3), which applies to defendants who flee from law
    enforcement “at high speed, or in any manner which demonstrates a wanton
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    disregard for the safety of persons or property,” and punishes such conduct as a
    second- or first-degree felony, depending on the facts of the case. 
    Fla. Stat. § 316.1935
    (3)(a); see Petite, 703 F.3d at 1292–93 (referring to an offense under
    § 316.1935(3) as “aggravated vehicle flight”).
    In United States v. Sykes, ___ U.S. ___, 
    131 S. Ct. 2267
    , 
    180 L.Ed.2d 60
    (2011), the United States Supreme Court declared that Indiana’s prohibition
    against vehicle flight from a police officer was categorically a violent felony under
    the ACCA. 
    Id.
     at ___, 
    131 S. Ct. at 2273
    . The Supreme Court concluded that
    vehicle flight from the police inherently poses a risk of violence similar to robbery
    or arson, and in so holding settled a circuit split. See 
    id.
     at ___, 
    131 S. Ct. at
    2272–
    74. In her dissent, Justice Kagan lamented the majority opinion’s inclusion of all
    forms of violating the statute into its holding; the Court held that all forms of the
    Indiana statute, from simple to aggravated, were violent felonies. Id.at __, 
    131 S. Ct. at 2288
    .
    In Petite, we held that a Florida conviction under § 316.1935(2) is
    categorically a violent felony under the ACCA because there is an inherent risk of
    violence in using a vehicle to flee and elude a police officer. Petite, 703 F.3d at
    1296, 1300–01. Using a vehicle to flee shows a “determination to elude capture,”
    in defiance of law enforcement, that “makes a lack of concern for the safety of
    property and persons of pedestrians and other drivers an inherent part of the
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    offense.” Sykes, ___ U.S. at ___, 
    131 S.Ct. at 2273
    . Beyond posing serious and
    substantial risks, we also determined that the risks posed by simple vehicle flight
    are similar in degree of danger to the risks of arson and burglary. Petite, 703 F.3d
    at 1295–96; Sykes, ___ U.S. at ___, 
    131 S.Ct. at 2274
     (noting that vehicle flight
    actually “presents more certain risk as a categorical matter than burglary”).
    Accordingly, we stated that “any form of intentional vehicle flight from a police
    officer presents powerful risks comparable to those presented by arson and
    burglary.” Petite, 703 F.3d at 1296 (emphasis in original).
    Although a copy of the judgment for Ortiz’s 2006 conviction is not in the
    record, Ortiz has consistently maintained, both at the sentencing hearing and on
    appeal, that he was convicted under § 316.1935(1). Moreover, the Government
    stated to the district court that the judgment reflects a conviction under
    § 316.1935(1). The Government’s brief on appeal makes inconsistent statements
    as to whether Ortiz was convicted under § 316.1935(1) or § 316.1935(2), but the
    references to § 316.1935(2) seem to be based on the fact that Ortiz was charged
    with (rather than convicted of) a violation of § 316.1935(2). Ortiz’s conviction
    appears to be under 
    Fla. Stat. § 316.1935
    (1).
    The district court did not err in treating Ortiz’s prior vehicle flight
    conviction under § 316.1935(1) as a categorical crime of violence under the career
    offender guidelines. We think that the this Court’s previous determination that a
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    violation of 
    Fla. Stat. § 316.1935
    (2) is a violent felony under the ACCA applies
    here because we held that any type of vehicle flight inherently poses the same sort
    of risks as the enumerated crimes. Petite, 703 F.3d at 1301; see Gilbert, 640 F.3d
    at 1309 n.16. Ortiz has advanced no reason why a conviction under § 316.1935(1)
    does not pose these same inherent risks. Indeed, Sykes explains that a defendant
    who defies a police officer by fleeing in a car commits a violent felony, even if the
    defendant is not going at full speed, because he “creates the possibility that police
    will, in a legitimate and lawful manner,” match the defendant’s speed or use force
    to retrieve him. Sykes, ___ U.S. at ___, 
    131 S. Ct. at 2273
    . A violation of 
    Fla. Stat. § 316.1935
    (1), which prohibits willfully refusing or failing to stop a vehicle
    or, after stopping, fleeing and eluding an officer, creates the same possibilities and
    poses the same inherent dangers. See 
    Fla. Stat. § 316.1935
    (1).
    Ortiz urges us to consider the different punitive schemes established in 
    Fla. Stat. § 316.1935
     as evidence that a conviction under § 316.1935(1), which could
    carry a less severe penalty than convictions under other subsections, is not
    categorically a crime of violence. However, we have already determined that the
    tiered punitive schemes provided for in 
    Fla. Stat. § 316.1935
     are not relevant in
    determining whether a vehicular fleeing and eluding conviction is a violent felony
    under the ACCA. See Petite, 703 F.3d at 1300-01; see also Sykes, ___ U.S. at ___,
    
    131 S.Ct. at 2273
    . What is relevant is whether the offense at issue “nonetheless
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    poses a substantial risk of physical injury.” Petite, 703 F.3d at 1300. Having
    concluded that Ortiz’s conviction under 
    Fla. Stat. § 316.1935
    (1) poses the same
    sort of risks as those discussed in Petite and encompassed under the definition of
    “crime of violence,” our decision is not affected by a gradient of possible penalties
    for fleeing and eluding the police. See Petite, 703 F.3d at 1301. To the extent that
    Ortiz urges us to overturn Petite, we may not oblige. See Cargill, 
    120 F.3d at 1386
    (stating that only the Supreme Court or an en banc decision of this Court will
    overrule a panel decision).
    II. Whether Ortiz’s Sentence is Substantively Unreasonable
    We review the substantive reasonableness of a sentence using a deferential
    abuse of discretion standard. United States v. Irey, 
    612 F.3d 1160
    , 1165 (11th Cir.
    2010) (en banc). We will vacate the sentence “if, but only if, we are left with the
    definite and firm conviction that the district court committed a clear error judgment
    in weighing the § 3553(a) factors by arriving at a sentence that lies outside the
    range of reasonable sentences dictated by the facts of the case.” Id. at 1190
    (quotation omitted). We will not “set aside a sentence merely because we would
    have decided that another one is more appropriate,” because the district court’s
    sentence need only be “a reasonable one.” Id. at 1191. The party challenging the
    sentence bears the burden of showing it to be unreasonable in light of the record
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    and § 3553(a) factors. United States v. Langston, 
    590 F.3d 1226
    , 1236 (11th Cir.
    2009).
    The district court must issue a sentence “sufficient, but not greater than
    necessary,” to comply with the purposes of 
    18 U.S.C. § 3553
    (a)(2). 
    18 U.S.C. § 3553
    (a). These purposes include the need for a sentence to reflect the
    seriousness of the offense, promote respect for the law, provide just punishment,
    deter criminal conduct, and protect the public from future criminal conduct. 
    Id.
    § 3553(a)(2). Additional considerations include the nature and circumstances of
    the offense, the history and characteristics of the defendant, the applicable
    guideline range, and the pertinent policy statements of the Sentencing
    Commission. Id. § 3553(a)(1), (3)–(7). The “weight to be accorded any given
    § 3553(a) factor is a matter committed to the sound discretion of the district court.”
    United States v. Williams, 
    526 F.3d 1312
    , 1322 (11th Cir. 2008).
    Sentences that fall within the guideline range are not automatically
    presumed to be reasonable, but we ordinarily expect such sentences to be
    reasonable. United States v. Hunt, 
    526 F.3d 739
    , 746 (11th Cir. 2008). Whether a
    given sentence is lower than the statutory maximum may be an indicator of
    reasonableness. United States v. Valnor, 
    451 F.3d 744
    , 751–52 (11th Cir. 2006).
    Ortiz has not demonstrated that his sentences were substantively
    unreasonable in light of all the § 3553(a) factors. His total sentence of 240 months
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    was below the guideline range and, though reflecting the 20-year statutory
    maximum term of imprisonment for Count 3, was well below the life sentence
    authorized for Count 1. See 
    18 U.S.C. § 1951
    (a); 
    21 U.S.C. § 841
    (b)(1)(A)(ii);
    Hunt, 
    526 F.3d at 746
    ; Valnor, 
    451 F.3d at
    751–52. Ortiz’s total sentence meets
    the goals encompassed by § 3553(a). Ortiz was preparing to rob what he thought
    was a cocaine stash house, a robbery that, unbeknownst to him, was staged by law
    enforcement. On the way to the robbery, Ortiz’s associate was shot and killed by
    law enforcement after failing to obey their commands. Although Ortiz argues that
    a larger downward variance was warranted because his crime did not involve an
    actual stash house or actual drugs, he did not have any weapons when arrested, and
    because the only act of violence was committed by law enforcement, the district
    court’s conclusion to the contrary is reasonable. After considering the § 3553(a)
    factors, the district court concluded that while Ortiz’s conviction for simple vehicle
    flight did qualify as a crime of violence, the guideline range overstated Ortiz’s
    actual criminal history, and accordingly granted a 22-month downward variance
    from the low end of the guideline range. Ortiz has not carried his burden to show
    that the district court’s sentencing decision represents a clear error of judgment.
    See Irey, 
    612 F.3d at 1190
    .
    After review of the parties’ briefs and the record on appeal, we affirm.
    AFFIRMED.
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