United States v. Mauricio DeJesus Ospina-Pineda , 332 F. App'x 584 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13397 ELEVENTH CIRCUIT
JUNE 15, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-20494-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO DEJESUS OSPINA-PINEDA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 15, 2009)
Before DUBINA, Chief Judge, TJOFLAT and BIRCH, Circuit Judges.
PER CURIAM:
Mauricio DeJesus Ospina-Pineda (“Ospina-Pineda”) appeals his 121-month
sentence imposed for conspiracy to distribute one kilogram or more of heroin with
intent to import into the United States in violation of 21 U.S.C. § 963. Ospina-
Pineda argues that the district court incorrectly included a Massachusetts state
court conviction for cocaine trafficking when calculating his criminal history
category. Alternatively, he contends that the government should be estopped from
using the state court conviction in determining his criminal history category
because the government deported him immediately after that conviction. His
deportation, in turn, prevented him from perfecting his challenge against the state
court conviction. We find both arguments less than convincing. Accordingly, we
AFFIRM.
I. BACKGROUND
Ospina-Pineda pled guilty, with the benefit of a plea agreement, to one count
of conspiracy to distribute one kilogram or more of heroin with the intent to import
into the United States, in violation of 21 U.S.C. § 963. Ospina-Pineda was one of
many individuals involved in a heroin trafficking conspiracy to import shipments
of heroin into the United States from Colombia. The conspiracy required corrupt
Colombian law enforcement officials to smuggle drugs through airport checkpoints
and onto commercial flights bound for Miami, where purportedly corrupt airport
employees, i.e., undercover law enforcement officers, would offload the hidden
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drugs.
The probation officer calculated Ospina-Pineda’s base offense level at 34
pursuant to U.S.S.G. § 2D1.1(a)(3)(Nov. 2007).1 After a three-level decrease for
acceptance of responsibility under U.S.S.G. § 3E1.1, Ospina-Pineda’s total offense
level was 31. The probation officer calculated three criminal history points
resulting in a criminal history category of II. See U.S.S.G. § 4A1.1(a). The
probation officer based those three points on Ospina-Pineda’s Massachusetts
cocaine trafficking conviction in which he was found guilty by a jury, sentenced to
ten years of imprisonment, and released to an immigration detainer. Based on a
total offense level of 31 and a criminal history category of II, Ospina-Pineda’s
guideline imprisonment range was 121 to 151 months of imprisonment. See
U.S.S.G. Ch.5 Pt.A. The statutory minimum term of imprisonment was ten years.
See 21 U.S.C. § 960(b)(1)(A).
Ospina-Pineda filed pro se objections to the PSI, later adopted by his
attorney. Ospina-Pineda objected to the calculation of his criminal history points
and noted that his state court conviction had been remanded to the Superior Court
in Massachusetts. According to Ospina-Pineda, he was unable to pursue that case
because the government deported him back to Colombia. The probation officer
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Ospina-Pineda conceded that the drug quantity at issue was 5.126 kilograms of heroin.
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responded that the Massachusetts Appeals Court vacated the Superior Court’s
order denying Ospina-Pineda’s second motion for a new trial and remanded the
case to the Superior Court for further proceedings consistent with that opinion.
Because Ospina-Pineda’s conviction still stood, it produced the three criminal
history points at issue.
The district court ultimately overruled Ospina-Pineda’s objections and
explained that
[t]he only issue here, sir, now, on this point is whether or
not the Massachusetts conviction stands. That’s the
issue. That’s the issue I am concerned with right now.
As far as I am concerned, from this point in time the
Massachusetts conviction stands. It’s been five years,
adequate time for that Court to have ruled and they
haven’t.
If at some point in time that issue changes, you can
revisit what sentence, if any, there is. But as far as
pointing this case for your guideline calculation, that
conviction stays.
R3 at 8-9. The district court found that the advisory guideline range adequately
reflected the 18 U.S.C. § 3553(a) factors and sentenced Ospina-Pineda to 121-
months of imprisonment and five years of supervised release. Id. at 19-20.
II. DISCUSSION
We review the district court’s factual findings for clear error and its
application of the sentencing guidelines to the facts de novo. United States v.
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McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006) (per curiam). Section 4A1.2 of
the sentencing guidelines provides the district court with instructions for
computing a defendant’s criminal history. See generally U.S.S.G. § 4A1.2.
Pursuant to § 4A1.2(l), the district court counts prior sentences under appeal
toward a defendant’s criminal history. Id. § 4A1.2(l). However, the district court
does not count sentences that have been reversed or vacated because of legal
errors. Id. § 4A1.2, comment. (n.6). Additionally, the district court does not count
sentences that have been ruled constitutionally invalid. Id. Moreover, in United
States v. Walker, 198 F.3d 811, 813-14 (11th Cir. 1999) (per curiam), we held that
if a federal defendant has, in state court, successfully attacked a prior state
conviction previously used to enhance his federal sentence, the district court may
reopen and reduce his federal sentence in a federal habeas corpus proceeding.
With regard to estoppel, it is well established that to make out such a claim against
the government, a party must provide evidence of the following: “(1) words,
conduct, or acquiescence that induces reliance; (2) willfulness or negligence with
regard to the acts, conduct, or acquiescence; (3) detrimental reliance; and (4)
affirmative misconduct by the Government.” United States v. McCorkle, 321 F.3d
1292, 1297 (11th Cir. 2003).
With that legal landscape in mind, we turn to Ospina-Pineda’s arguments.
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First, we conclude that the district court did not err by including the Massachusetts
cocaine trafficking conviction in Ospina-Pineda’s criminal history calculation.
However, pursuant to Walker, we recognize Ospina-Pineda’s right to petition the
district court to reopen and reduce his federal sentence in a federal habeas
proceeding if the state court vacates his cocaine trafficking conviction. Second, we
find that Ospina-Pineda has failed to provide any evidence to support an estoppel
claim against the government for his previous deportation. See McCorkle, 321
F.3d at 1297. Although the government deported Ospina-Pineda prior to the
completion of his state court challenge, no evidence has been presented that the
government induced reliance, acted negligently, or engaged in misconduct.
Consequently, Ospina-Pineda’s estoppel argument fails.
III. CONCLUSION
Ospina-Pineda appeals his 121-month sentence and argues that the district
court incorrectly included a Massachusetts state court conviction for cocaine
trafficking when calculating his criminal history category. Alternatively, he
contends that the government should be estopped from using the state court
conviction in determining his criminal history category because the government
deported him immediately after that conviction. We find no merit in either
argument. Accordingly, we AFFIRM.
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AFFIRMED.
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