United States v. Gabriel Cortes , 427 F. App'x 803 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13432 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 25, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20235-PCH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL CORTES,
a.k.a. Julio Cortes,
a.k.a. Noel Cortes,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 25, 2011)
Before EDMONDSON, HULL and PRYOR, Circuit Judges.
PER CURIAM:
After pleading guilty, Gabriel Cortes appeals his 57-month sentence for one
count of illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326(a) and
(b)(2). On appeal, Cortes challenges the district court’s calculation of his offense
level under U.S.S.G. § 2L1.2. After review, we affirm.
I. BACKGROUND
A. Presentence Investigation Report
Cortes’s presentence investigation report (“PSI”) assigned a base offense
level of eight, pursuant to U.S.S.G. § 2L1.2(a). Paragraph 11 of the PSI
recommended a sixteen-level increase, pursuant to § 2L1.2(b)(1)(A)(ii), because
Cortes was previously deported after being convicted of a felony that is a crime of
violence. Paragraph 28 of the PSI outlined the details of the prior convictions
supporting the sixteen-level enhancement, which consisted of two counts of
battery on a police officer and one count of resisting an officer with violence.
According to paragraph 28, on September 11, 2005, Cortes (at age sixteen)
crawled under a bathroom stall in a bar and robbed a man at knife-point. The
robbery victim reported the crime to the bar manager. A police officer confronted
Cortes as he entered a pickup truck. Cortes became violent, shoved the officer and
fled into a nearby cemetery. An hour and a half later, the officer found Cortes
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crawling on the ground behind the truck, and Cortes fled again. As officers
apprehended Cortes, Cortes punched an officer in the chest.
Although the resulting charges initially were filed in juvenile court, on
October 3, 2005, Cortes’s case was transferred to the criminal division of the
Florida Circuit Court, where Cortes was charged as an adult. On February 9,
2006, the criminal court withheld adjudication (on his two battery offenses and
one resisting an officer with violence offense) and sentenced Cortes as a youthful
offender to 364 days in jail, followed by two years of probation. After Cortes
completed his jail term and probation, Cortes was removed to Mexico on October
25, 2008.
B. Objection to § 2L1.2(b)(1)(A) Enhancement
Cortes objected to the sixteen-level enhancement in paragraph 11 of the PSI.
Cortes argued that his withheld adjudications did not count as adult convictions
for purposes of U.S.S.G. § 2L1.2(b)(1)(A) because the Florida Circuit Court
sentenced him as a youthful offender. Cortes did not object to paragraph 28 of the
PSI or dispute the facts relating to the withheld adjudications.
C. Sentencing
During the sentencing hearing, Cortes admitted that his criminal charges
were transferred for prosecution to “adult court,” i.e., the criminal division of the
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Florida Circuit Court. Cortes submitted copies of records from the Florida Circuit
Court relating to the charges. The “Finding of Guilt and Order of Withholding
Adjudication/Special Conditions,” dated February 27, 2006, stated that, upon a
guilty plea, Cortes was found guilty of, inter alia, two counts of “BATTERY/
POLICE OFFICER/FIREFIGHTER/INTAKE OFFICER,” and one count of
“RESISTING OFFICER WITH VIOLENCE TO HIS PERSON,” which were third
degree felonies. After finding that “the defendant is not likely to engage in a
criminal course of conduct and that the ends of justice and welfare of society do
not require that the defendant shall presently suffer the penalty imposed by law,”
the state court ordered that the adjudication of guilty be withheld.1
A separate Florida Circuit Court order, also dated February 27, 2006 and
denominated “Sentence,” stated that, after “having been adjudicated guilty herein”
and the Florida Circuit Court “having given the defendant an opportunity to be
heard and to offer matters in mitigation of [the] sentence,” Cortes was “committed
to the custody of the Dade County Jail (Youthful Offender)” and was “sentenced
as a youthful offender in accordance with F.S. 958.04” to a term of 364 days.
1
This language in the order tracks the language of Florida’s statute authorizing withheld
adjudications in criminal (adult) proceedings. See Fla. Stat. § 948.01(2).
4
After reviewing the language of the Youthful Offender Act and the Florida
Circuit Court records, the district court concluded that Cortes’s withheld
adjudications were “adult conviction[s].” The district court stressed that the case
was transferred to the criminal division of the Florida Circuit Court and that the
Youthful Offender Act merely gave that adult court “more options to treat a
youthful offender more leniently than” someone who was older.
Cortes next argued that his withheld adjudications for two battery offenses
and one resisting an officer with violence offense were not crimes of violence for
purposes of § 2L1.2(b)(1)(A). The district court overruled Cortes’s objection,
finding, based on its reading of the PSI, that Cortes’s offenses of battery on an
officer and resisting an officer with violence involved more than an innocuous
touching.
The district court adopted the PSI’s factual findings and guidelines
calculations, which resulted in an advisory guidelines range of 57 to 71 months’
imprisonment. After considering the parties’ arguments and the 18 U.S.C.
§ 3553(a) factors, the district court imposed a 57-month sentence. Cortes filed this
appeal.
II. DISCUSSION
A. Adult Conviction
5
Section 2L1.2 of the Sentencing Guidelines provides for a sixteen-level
increase in the defendant’s offense level if the defendant was previously deported
after certain kinds of felony convictions, including a crime of violence. U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The enhancement “does not apply to a conviction for an
offense committed before the defendant was eighteen years of age unless such
conviction is classified as an adult conviction under the laws of the jurisdiction in
which the defendant was convicted.” Id. cmt. n.1(A)(iv).2
Here, we conclude that Cortes’s withheld adjudications are “adult
convictions” under Florida law. First, Florida law defines a “conviction” as “a
determination of guilt that is the result of a plea or a trial, regardless of whether
adjudication is withheld.” Fla. Stat. § 921.0021(2). Thus, the fact that Cortes’s
adjudications were withheld did not prevent application of § 2L1.2(b)(1)(A)’s
sixteen-level enhancement.
Second, under Florida’s Criminal Procedure Law, adult criminal convictions
occur in the criminal division of the state’s Circuit Courts. See Fla. Stat. § 900.03.
Under Florida’s Juvenile Justice Act, adjudications of law violations by children
under the age of 18 occur in the juvenile court (i.e., the juvenile division of the
2
We review de novo the district court’s legal interpretation of the Sentencing Guidelines.
United States v. Burge, 407 F.3d 1183, 1186 (11th Cir. 2005).
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Circuit Courts) “unless, in compliance with the Act, juvenile jurisdiction is waived
or the juvenile falls under a statutory exception.” State v. Griffith, 675 So.2d 911,
912-13 (Fla. 1996); see also Fla. Stat. § 985.0301(1) (conferring jurisdiction),
§ 985.35 (providing for adjudicatory hearings in juvenile court). Florida law
provides several ways the criminal case of a child fourteen or older may be
transferred from juvenile court to adult court for prosecution. See id. §§ 985.556-
985.56 (providing for transfer to adult court by voluntary and involuntary waiver
and for direct filing of an information in adult court for certain offenses). It is
undisputed that Cortes’s criminal case began in the juvenile court, but was
transferred, pursuant to Florida’s Juvenile Justice Act, to the criminal division of
the Florida Circuit Court for adult prosecution.
Third, we agree with the district court that the Florida Youthful Offender
Act, Florida Statutes § 958.04, does not negate a juvenile’s adult conviction in the
criminal division of a Florida Circuit Court. See United States v. Wilks, 464 F.3d
1240, 1242-43 (11th Cir. 2006) (concluding that prior Florida convictions
supported U.S.S.G. § 4B1.1 career offender enhancement and application of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), despite sentencing
as a youthful offender because defendant was sentenced in adult court and was
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otherwise treated as an adult criminal).3 Section 958.04 gives the criminal
division of the Florida Circuit Court the discretion to sentence eligible defendants
who are under 21 years of age as “youthful offender[s].” Fla. Stat. § 958.04(1). If
the Florida Circuit Court decides to sentence a defendant as a youthful offender,
“[i]n lieu of other criminal penalties authorized by law,” the court is given an array
of alternative sentencing options, such as probation, placement in a community
control program, incarceration in county facilities, restitution centers or public or
private community residential facilities, and to split sentences between options.
Id. § 958.04(2)(a)-(c); see also id. § 958.021 (stating that the purpose of the
Florida Youthful Offender Act is “to provide an additional sentencing alternative
to be used in the discretion of the court when dealing with offenders who have
demonstrated that they can no longer be handled safely as juveniles and who
require more substantial limitations upon their liberty to ensure the protection of
society” while at the same time encouraging their rehabilitation “by preventing
their association with older and more experienced criminals during the terms of
their confinement”). Nothing in Florida’s youthful offender statute suggests that a
3
We note that, while Wilks involved U.S.S.G. § 4B1.1’s career offender provision, that
provision, like U.S.S.G. § 2L1.2(b)(1), counts only prior adult convictions and limits an adult
conviction for an offense committed before age 18 to one “classified as an adult conviction under
the laws of the jurisdiction in which the defendant was convicted . . . .” See U.S.S.G. § 4B1.2
cmt. n.1.
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youthful offender’s conviction in the criminal division of the Florida Circuit Court
is not an adult conviction under Florida law.4
In sum, the fact that the Florida Circuit Court later sentenced Cortes as a
youthful offender did not change the fact that, under Florida law, it first convicted
him as an adult of two counts of battery on an officer and one count of resisting an
officer with violence. Accordingly, the district court did not err in counting these
withheld adjudications as predicate offenses for purposes of the § 2L1.2(b)(1)(A)
sixteen-level enhancement.
B. Crime of Violence
Under U.S.S.G. § 2L1.2(b)(1)(A), a “crime of violence” includes, inter alia,
any offense “that has as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
Generally, when determining whether a prior conviction is a qualifying offense for
purposes of a sentencing enhancement, we use a modified categorical approach,
looking at the fact of the conviction, the statutory definition of the prior offense,
4
Cortes’s reliance on Green v. State, 975 So.2d 1090 (Fla. 2008), is misplaced. The issue
in Green was whether a defendant’s New York youthful offender adjudication constituted a
conviction for purposes of Florida’s death penalty statute. See 975 So.2d at 1112. In any event,
the dicta to which Cortes points seems to support our reading of the Florida Youthful Offender
Act given that it states that in Florida “youthful offender status appertains to the sentence rather
than to the adjudication” and that “youthful offender status does not bear on the issue of whether
the adjudication constitutes a conviction.” Id. at 1112-13.
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and, if the statute encompasses conduct falling both inside and outside the
enhancement, certain Shepard-approved documents, such as the charging
document, written plea agreement, transcript of the plea colloquy and explicit
findings of fact. United States v. Rainer, 616 F.3d 1212, 1215 (11th Cir. 2010)
(involving ACCA enhancement), cert. denied, 131 S. Ct. 968 (2011); United
States v. Palomino Garcia, 606 F.3d 1317, 1327-29 (11th Cir. 2010) (involving
sixteen-level enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii)); see also Shepard v.
United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005).5
Construing identical language in U.S.S.G. § 4B1.2(a)(1),6 this Court
concluded that, when applying the categorical approach, “the fact of a conviction
for felony battery on a law enforcement officer in Florida, standing alone, no
longer satisfies the ‘crime of violence’ enhancement criteria” of physical force.
United States v. Williams, 609 F.3d 1168, 1169-70 (11th Cir. 2010). The
Williams court explained that under Florida’s battery statute, a person could
commit a battery by either actually and intentionally touching someone or by
5
We review de novo a district court’s determination that a prior conviction qualifies as a
“crime of violence” under the Sentencing Guidelines. United States v. Ortiz-Delgado, 451 F.3d
752, 754 (11th Cir. 2006).
6
For purposes of the career offender provision in U.S.S.G. § 4B1.1, § 4B1.2 defines a
“crime of violence” to include an offense that “has as an element the use, attempted use, or
threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1).
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intentionally causing bodily harm to someone. Id. at 1170. The Williams court
concluded that there was “no evidence in the record, that we may consider under
Shepard v. United States, to clarify under which of these provisions Williams was
convicted.” Id. Williams relied upon Johnson v. United States, 559 U.S. ___,
130 S. Ct. 1265, 1271 (2010), which concluded that the phrase “physical force” in
the ACCA, 18 U.S.C. § 924(e)(2)(B)(i), meant “violent force”—that is, “force
capable of causing physical pain or injury to another person.” Johnson, 559 U.S.
at ___, 130 S. Ct. at 1271; see also Williams, 609 F.3d at 1169.7
Cortes argues that, after Williams and Johnson, his Florida convictions for
battery on an officer and resisting an officer with violence categorically do not
qualify as “crimes of violence” for purposes of § 2L1.2(b)(1)(A). The problem for
Cortes is that he did not dispute the facts in paragraph 28 of the PSI, which show
that Cortes’s Florida offenses did involve violent force. In fact, it is undisputed
that Cortes’s offenses involved violently shoving an officer and then later
punching an officer in the chest.
At sentencing, the district court may rely on facts contained in the PSI that
are undisputed and deemed admitted. See United States v. Bennett, 472 F.3d 825,
7
As with U.S.S.G. § 2L1.2(b)(1)(A) and § 4B1.2(a)(1), the ACCA defines a “violent
felony” to include a crime that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i).
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832-34 (11th Cir. 2006). To the extent Cortes argues for the first time on appeal
that the facts in paragraph 28 were drawn from non-Shepard-approved materials,
he has not preserved that argument for appellate review. See United States v.
Wade, 458 F.3d 1273, 1277 (11th Cir. 2007) (explaining that the “failure to object
to a district court’s factual findings [as to the nature of the prior offense] precludes
the argument that there was error in them”). Therefore, the district court did not
err in concluding that Cortes’s Florida withheld adjudications for two counts of
battery on an officer and one count of resisting an officer with violence were
“crimes of violence” within the meaning of U.S.S.G. § 2L1.2(b)(1)(A).
AFFIRMED.
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