United States v. Miguel Monzo , 852 F.3d 1343 ( 2017 )


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  •                 Case: 16-10222        Date Filed: 04/07/2017       Page: 1 of 17
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-10222
    ________________________
    D.C. Docket No. 1:15-cr-20290-JLK-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MIGUEL MONZO,
    a.k.a. El Miki,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (April 7, 2017)
    Before MARCUS, JILL PRYOR and SILER, * Circuit Judges.
    MARCUS, Circuit Judge:
    Miguel Monzo appeals his total 120-month sentence, imposed at the low end
    of his advisory guideline range and at the statutory mandatory minimum, after
    *
    Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
    by designation.
    Case: 16-10222     Date Filed: 04/07/2017    Page: 2 of 17
    pleading guilty to one count of conspiracy to possess with intent to distribute 50
    grams or more of methamphetamine, in violation of 
    21 U.S.C. §§ 841
    (a)(1) and
    (b)(1)(A)(viii), and 846.
    On appeal, Monzo argues that: (1) the district court erred in denying his
    request for a minor-role reduction; (2) the district court erred in assessing three
    criminal history points for a 2001 Nevada felony drug-possession conviction; and
    (3) the district court erred in assessing two criminal history points for a 2007 New
    Mexico misdemeanor concealing-identity conviction. Concerning the last two
    issues, Monzo further argues that without the district court’s error in assigning
    these five criminal history points to him, he would have been eligible for relief
    under the Safety Valve, U.S.S.G. § 5C1.2, which allows a sentencing court to
    sentence a defendant without regard to any statutory minimum if the defendant
    does not have more than one criminal history point. The government responds,
    among other things, that because Monzo does not challenge one of the criminal
    history points he received, and because Monzo cannot succeed on both of the
    criminal history arguments he raises here, any error in one or the other would not
    have made him eligible for Safety Valve relief. After careful review, we affirm.
    I.
    First, we are unpersuaded by Monzo’s claim that the district court clearly
    erred in denying his request for a minor-role reduction. We review a district
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    court’s denial of a role reduction for clear error. United States v. Bernal-Benitez,
    
    594 F.3d 1303
    , 1320 (11th Cir. 2010). Clear error review is deferential, and “we
    will not disturb a district court’s findings unless we are left with a definite and firm
    conviction that a mistake has been committed.” United States v. Ghertler, 
    605 F.3d 1256
    , 1267 (11th Cir. 2010) (quotations omitted). The district court’s “choice
    between two permissible views of the evidence” concerning the defendant’s role in
    the offense will rarely constitute clear error “[s]o long as the basis of the trial
    court’s decision is supported by the record and does not involve a misapplication
    of a rule of law.” United States v. De Varon, 
    175 F.3d 930
    , 945 (11th Cir. 1999)
    (en banc) (quotation and emphasis omitted). The defendant bears the burden of
    establishing his minor role by a preponderance of the evidence. Bernal-Benitez,
    
    594 F.3d at 1320
    .
    The Sentencing Guidelines provide for a two-level decrease to a base
    offense level if the defendant was a minor participant in the criminal activity.
    U.S.S.G § 3B1.2(b). A minor participant is one “who is less culpable than most
    other participants in the criminal activity, but whose role could not be described as
    minimal.” Id., cmt. n.5. Our leading case concerning the minor-role reduction --
    De Varon -- has long instructed district courts considering a minor-role reduction
    to assess “first, the defendant’s role in the relevant conduct for which [he] has been
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    held accountable at sentencing, and, second, [his] role as compared to that of other
    participants in [his] relevant conduct.” 
    175 F.3d at 940
    .
    In De Varon, the defendant was a drug courier -- she had ingested and
    smuggled 70 heroin-filled pellets into the United States from Colombia. 
    Id. at 934
    . We recognized that “when a drug courier’s relevant conduct is limited to her
    own act of importation, a district court may legitimately conclude that the courier
    played an important or essential role in the importation of those drugs.” 
    Id.
     at 942-
    43. However, we declined to “create a presumption that drug couriers are never
    minor or minimal participants, any more than that they are always minor or
    minimal”; rather, “the district court must assess all of the facts probative of the
    defendant’s role in her relevant conduct in evaluating the defendant’s role in the
    offense.” 
    Id. at 943
    . As examples of relevant facts for the court to consider, we
    listed the “amount of drugs, fair market value of drugs, amount of money to be
    paid to the courier, equity interest in the drugs, role in planning the criminal
    scheme, and role in the distribution.” 
    Id. at 945
    . The en banc Court in De Varon
    stressed that this is “not an exhaustive list,” nor is “any one factor . . . more
    important than another,” especially since the determination is highly fact-intensive
    and “falls within the sound discretion of the trial court.” 
    Id.
     We ultimately
    concluded that it was well within the sentencing court’s discretion to deny De
    Varon a minor-role adjustment, after it determined that she was central to the
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    importation scheme; that she had carried a substantial amount of high-purity heroin
    on her person; that it was unclear from the record that she was less culpable than
    the other described participant in the scheme; and that she had furnished $1,000 of
    her own money to finance the smuggling enterprise. 
    Id. at 945-46
    .
    Consistent with De Varon, commentary to the Sentencing Guidelines has
    laid out factors a court should consider when faced with a minor-role claim:
    (i)   the degree to which the defendant understood the scope
    and structure of the criminal activity;
    (ii) the degree to which the defendant participated in
    planning or organizing the criminal activity;
    (iii) the degree to which the defendant exercised decision-
    making authority or influenced the exercise of decision-making
    authority;
    (iv) the nature and extent of the defendant’s participation in
    the commission of the criminal activity, including the acts the
    defendant performed and the responsibility and discretion the
    defendant had in performing those acts;
    (v) the degree to which the defendant stood to benefit from
    the criminal activity.
    For example, a defendant who does not have a proprietary
    interest in the criminal activity and who is simply being paid to
    perform certain tasks should be considered for an adjustment under
    this guideline.
    The fact that a defendant performs an essential or indispensable
    role in the criminal activity is not determinative. Such a defendant
    may receive an adjustment under this guideline if he or she is
    substantially less culpable than the average participant in the criminal
    activity.
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    U.S.S.G. § 3B1.2 cmt. n.3(C). The Guidelines’ commentary explains further that
    “[a] defendant who is accountable under 1.3 (Relevant Conduct) only for the
    conduct in which the defendant personally was involved and who performs a
    limited function in the criminal activity may receive an adjustment under this
    guideline.” U.S.S.G. § 3B1.2 cmt. n.3(A).
    Here, Monzo argues that he was entitled to a minor-role adjustment because
    he merely acted as a low-level courier for methamphetamine. But as the en banc
    Court said in De Varon, a defendant’s status as a courier is not determinative; the
    district court must still assess the totality of the circumstances. 
    175 F.3d at 945
    .
    According to the factual proffer, which was submitted in support of Monzo’s guilty
    plea, Monzo admitted to packaging methamphetamine and mailing it from Las
    Vegas, Nevada to recipients in Miami, Florida, at the direction of the source of
    supply for the drugs. The recipients in Miami would further distribute the
    methamphetamine. Monzo also admitted that he provided bank account
    information to the recipients in Miami so that they could deposit the proceeds of
    the methamphetamine sales in those accounts.
    At the sentencing hearing, the district court found that Monzo had packaged
    and mailed “very pure drugs” to drug dealers in Miami, and by doing so, Monzo
    had facilitated the flow of the drugs in the country. The court also found that
    Monzo had control over which banks the proceeds from the sale of the drugs went
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    to by notifying the buyers where to deposit the proceeds. The district court added
    that Monzo was held responsible only for his own conduct in the conspiracy -- that
    is, only “for the sales he did on the street.” The district court emphasized that it
    had looked at Monzo’s situation “individually,” and found that Monzo was a very
    “important part of the crime.” Consistent with De Varon, the district court
    considered, first, Monzo’s role in the conduct for which he was being sentenced,
    and, second, Monzo’s role as compared to others. The district court also
    considered several relevant factors, including that Monzo participated in the
    distribution of high-purity methamphetamine, that he directed payment for the
    methamphetamine, that he was responsible only for his direct role in the
    conspiracy, and that he was important to the scheme. On this record, we cannot
    say the district court clearly erred in finding that Monzo did not play a minor role
    in the offense. Accordingly, we affirm the district court’s denial of the minor-role
    reduction. See De Varon, 
    175 F.3d at 942-43
    .1
    1
    We do, however, raise a concern about some of the district court’s comments about the
    application of the minor-role reduction. In relevant part, the district court said:
    [T]he [drug] courier[] [in general] . . . is an integral and important phase of
    the drug dealing . . . .
    So this Court has never -- this judge has never accepted the proposition
    that this is a minor role.
    We look at each situation individually and treat people as human beings
    individually, but the Court finds that this is a very important part of the crime that
    was committed.
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    And the act that this particular defendant has pled guilty to involves a
    receipt of very pure drugs . . . . That’s one finding.
    The second finding is by packaging or repackaging, that he packaged and
    mailed on to drug dealers in Miami, he then implemented the flow of this filth,
    this scourge in this district, in this country.
    He implemented that. But for that doing, it wouldn’t have gotten here in
    this crime. It might have been some other way or some other time or some other
    place being bought or not, but that’s very important. . . .
    [T]he further aspect of having control over where the payments of the
    drugs was to the banks by giving the notification to the buyers where to send the
    money and all that, that objection as to the minor role is overruled and the request
    for some sort of minor role adjustment is denied.
    Doc. 52 at 34-35.
    We are concerned with the district court’s comment that it has “never” found drug
    couriers to be minor participants. Indeed, the Guidelines’ commentary expressly provides that:
    (1) “[t]he fact that a defendant performs an essential or indispensable role in the criminal activity
    is not determinative,” U.S.S.G. § 3B1.2 cmt. n.3(C); and (2) “a defendant who is convicted of a
    drug trafficking offense, whose participation in that offense was limited to transporting or storing
    drugs and who is accountable under [U.S.S.G. § 1B1.3] only for the quantity of drugs the
    defendant personally transported or stored may receive an adjustment under this guideline,” id. §
    3B1.2 cmt. n.3(A) (emphasis added).
    Notably, however, Monzo did not raise any question at the sentencing hearing about any
    of the district court’s comments, or even suggest that the district court relied on improper factors
    in its analysis. And, on appeal, Monzo only has argued generally that he is entitled to a minor-
    role reduction. See United States v. Massey, 
    443 F.3d 814
    , 819 (11th Cir. 2006) (“[F]or a
    defendant to preserve an objection to her sentence for appeal, [he] must raise that point in such
    clear and simple language that the trial court may not misunderstand it. When the statement is
    not clear enough to inform the district court of the legal basis for the objection, we have held that
    the objection is not properly preserved.”) (citations and quotations omitted); United States v.
    Dennis, 
    786 F.2d 1029
    , 1042 (11th Cir. 1986) (noting that to preserve an issue for appeal,
    “general objections or an objection on other grounds will not suffice”); see also United States v.
    Jernigan, 
    341 F.3d 1273
    , 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a claim or issue
    on appeal must plainly and prominently so indicate. Otherwise, the issue -- even if properly
    preserved at trial -- will be considered abandoned.”). Thus, we doubt that Monzo has adequately
    preserved the objection or that he has not abandoned it on appeal. See Access Now, Inc. v.
    Southwest Airlines Co., 
    385 F.3d 1324
    , 1335 (11th Cir. 2004) (“We will not address a claim that
    has been abandoned on appeal.”).
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    II.
    We also find no merit to Monzo’s claim that the district court erred in
    assessing three criminal history points for his 2001 Nevada felony drug-possession
    conviction. In reviewing a district court’s use of the Guidelines, we review purely
    legal questions de novo, and the district court’s factual findings for clear error.
    United States v. White, 
    335 F.3d 1314
    , 1317 (11th Cir. 2003).
    In determining a defendant’s criminal history category, the Sentencing
    Guidelines instruct, in relevant part, the following:
    a. Add 3 points for each prior sentence of imprisonment
    exceeding one year and one month.
    b. Add 2 points for each prior sentence of imprisonment of at least
    sixty days not counted in (a).
    c. Add 1 point for each prior sentence not counted in (a) or (b), up
    to a total of 4 points . . . .
    U.S.S.G. § 4A1.1. A “‘sentence of imprisonment’ means a sentence of
    incarceration and refers to the maximum sentence imposed.” Id. § 4A1.2(b)(1). In
    the case of an indeterminate sentence of one to five years, for example, the stated
    maximum (or the maximum sentenced imposed), is five years. Id., cmt. n.2. In
    But even if we were to assume that Monzo adequately preserved this issue in the district
    court and has sufficiently advanced it on appeal, it is not clear that the district court erected any
    per se role for couriers in drug cases. After all, the court reflected on the facts peculiar to this
    case, including the very high purity of the methamphetamine, and the role played by the
    defendant in packaging the controlled substance, and perhaps most notably, in directing the flow
    of payments to specifically earmarked financial institutions.
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    making this calculation, “criminal history points are based on the sentence
    pronounced, not the length of time actually served.” Id. Among the prior
    sentences of imprisonment allowed to be counted in the calculation of a
    defendant’s criminal history category are “sentence[s] of imprisonment exceeding
    one year and one month that [were] imposed within fifteen years of the defendant’s
    commencement of the instant offense,” or “[a]ny other prior sentence that was
    imposed within ten years of the defendant’s commencement of the instant
    offense.” Id. § 4A1.2(e)(1),(2).
    “If part of a sentence of imprisonment was suspended, ‘sentence of
    imprisonment’ refers only to the portion that was not suspended.” Id. §
    4A1.2(b)(2). In counting a revocation of probation in a defendant’s criminal
    history calculation, the Sentencing Guidelines instruct courts to “add the original
    term of imprisonment to any term of imprisonment imposed upon revocation.” Id.
    § 4A1.2(k) (emphasis added). “The resulting total is used to compute the criminal
    history points for 4A1.1(a), (b), or (c), as applicable.” Id.
    Here, Monzo argues that the district court erred in assigning three criminal
    history points for his 2001 Nevada drug-possession conviction because it was not
    proven that he served more than thirteen months’ imprisonment on the conviction,
    nor was it shown that the sentence was imposed within fifteen years of the instant
    offense. We disagree. It is true that Monzo originally received a suspended
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    sentence for this conviction in state court, and was given two years’ probation in
    October 2001. Had this been the sum total of his sentence associated with the
    conviction, it would not have triggered additional criminal history points. See
    U.S.S.G. § 4A1.2(b)(2). However, after being arrested on a probation violation in
    December 2003, his probation was revoked, and he was sentenced to twelve-to-
    thirty months’ imprisonment in February 2004.
    For purposes of calculating Monzo’s criminal history points for this
    conviction, we “add the original term of imprisonment to any term of
    imprisonment imposed upon revocation.” Id. § 4A1.2(k). Monzo claims that the
    phrase “term of imprisonment” found in § 4A1.2(k) is different from “sentence of
    imprisonment,” and means the amount of time actually served. However, §
    4A1.2(k)(1) uses the phrase “term of imprisonment imposed” specifically to
    describe how the court is to calculate the “sentence of imprisonment” for purposes
    of § 4A1.1(a). And, notably, the Guidelines consistently use the word “imposed”
    to refer to the action of a sentencing court. See, e.g., id. § 1B1.4 (“In determining
    the sentence to impose . . . the court may consider . . . any information concerning
    the background, character and conduct of the defendant, unless otherwise
    prohibited by law.” (emphasis added)); id. § 1B1.13 (“[T]he court may . . . impose
    a term of supervised release . . . .” (emphasis added)); id. ch. 5 pt. A, introductory
    cmt. (“For certain categories of offenses and offenders, the guidelines permit the
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    court to impose either imprisonment or some other sanction or combination of
    sanctions.” (emphasis added)). What’s more, Chapter 4 of the Guidelines
    consistently -- by our count, about a dozen times -- uses the phrase “term of
    imprisonment” synonymously with “sentence of imprisonment.” See, e.g., id. §
    4A1.2(c)(1), (k)(1), (k)(2), (o), cmt. n.4, cmt. n.11; id. § 4B1.1 cmt. n.2, cmt.
    n.3(B), (D); see also United States v. Ramirez-Perez, 
    643 F.3d 173
    , 177 (6th Cir.
    2011) (holding that “term of imprisonment” in § 4A1.2(k) “has the same meaning”
    as and is “interchangeable” with “sentence of imprisonment”); United States v.
    Jasso, 
    587 F.3d 706
    , 710 (5th Cir. 2009) (“We conclude that ‘term of
    imprisonment,’ as it appears in § 4A1.2 as a whole, is synonymous with ‘sentence
    of imprisonment’ . . . .”). Yet Monzo has pointed to no place in the Guidelines
    where the phrase “term of imprisonment imposed” somehow refers to actual time
    served.
    Here, the “term of imprisonment imposed upon revocation” by the prior
    court was the range of twelve-to-thirty months’ imprisonment. Therefore, under
    the plain language of the Guidelines, the “sentence of imprisonment” Monzo
    received for this drug-possession conviction was the stated maximum sentence of
    the range given -- i.e., thirty months. See id. §§ 4A1.2, cmt. n.2; 4A1.2(k). This is
    true regardless of how long Monzo actually served. Id. cmt. n.2.
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    Because the thirty-month sentence exceeded one year and one month, the
    Guidelines recommend that three criminal history points be added to the
    determination if the prior sentence was imposed within fifteen years of the
    defendant’s commencement of the instant offense. Id. § 4A1.2(e)(1),(2).
    According to the factual proffer for the instant offense, which was submitted in
    support of Monzo’s guilty plea, Monzo admitted that “[b]etween August 25, 2014
    and February 36, 2015, [he] would send methamphetamine from Las Vegas,
    Nevada, to recipients in Miami, Florida, at the direction of the source of supply of
    the drugs.” As a result, under the Guidelines, the sentence of imprisonment for the
    2001 felony drug-possession conviction fell within the fifteen-year timeframe, and
    the district court properly assessed three criminal history points for this offense.
    Id. §§ 4A1.1(a), 4A1.2(e).
    As for Monzo’s claim that this conviction was “presumptively void” because
    the notice of revocation was filed outside his two-year probationary period, we are
    unpersuaded. Generally, a defendant cannot collaterally attack the constitutionality
    of a prior conviction for the first time in a sentencing proceeding. United States v.
    Cooper, 
    203 F.3d 1279
    , 1287 (11th Cir. 2000). However, when a defendant
    “sufficiently asserts facts that show that an earlier conviction is ‘presumptively
    void,’ the Constitution requires the sentencing court to review [the] earlier
    conviction before taking it into account.” 
    Id.
     The burden is on the defendant to
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    “lay a factual foundation for collateral review on the ground that the state
    conviction was ‘presumptively void.’” 
    Id.
    In the district court, Monzo introduced state court documents apparently
    indicating that he was placed on two years’ probation in October 2001, and that a
    notice to seek revocation was not filed until January 2004. But, under Nevada law,
    issuing an arrest warrant tolls the period of probation. See Nev. Rev. Stat. §
    176A.500 (2005). Monzo did not show that his probation was not tolled in this
    manner. Nor did the record otherwise show that Monzo had challenged the
    revocation in state court. Without something more, Monzo has failed to show that
    his probation revocation was “presumptively void.” Id. Accordingly, the district
    court did not err in assessing three criminal history points for this prior conviction.
    Finally, we can grant no relief based on Monzo’s claim that the district court
    erred in assessing two criminal history points for his 2007 New Mexico
    misdemeanor concealing-identity conviction for which he received a “credit time
    served” sentence based on time he spent in custody awaiting adjudication for an
    unrelated felony. Commentary to the Sentencing Guidelines provides that “[t]o
    qualify as a sentence of imprisonment, the defendant must have actually served a
    period of imprisonment on such sentence . . . .” U.S.S.G. § 4A1.2, cmt. n.2. We
    have not directly addressed whether credit for time served awaiting adjudication on
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    a wholly separate offense qualifies as a period of imprisonment that the defendant
    “actually served” on the sentence in question.
    But even if we assume, arguendo, that Monzo’s concealing-identity
    conviction should not have been counted in the calculation of his criminal history
    points, any error in assigning this conviction two criminal history points was
    harmless. While we review de novo legal questions involved in the district court’s
    application of the Guidelines, White, 
    335 F.3d at 1317
    , harmless errors must be
    disregarded. Fed. R. Crim. P. 52. An error is harmless if it “had no substantial
    influence on the outcome and sufficient evidence uninfected by error supports the
    decision.” Rivers v. United States, 
    777 F.3d 1306
    , 1316 (11th Cir.), cert. denied,
    
    136 S. Ct. 267
     (2015) (alterations and quotation omitted); see also Fed. R. Crim. P.
    52(a) (defining “harmless error” as “[a]ny error, defect, irregularity, or variance
    that does not affect substantial rights”). An error is not harmless if “there is a
    reasonable likelihood that [it] affected the defendant’s substantial rights.” Rivers,
    777 F.3d at 1316 (quotation omitted).
    Monzo claims that the error was not harmless because he erroneously
    received five criminal history points that significantly affected his sentence.
    Without them, he says, he would have only been in a criminal history category I,
    and would have been eligible for relief under the Safety Valve, U.S.S.G. § 5C1.2.
    Section 5C1.2 of the Sentencing Guidelines, the “Safety Valve” provision, only
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    allows a sentencing court to sentence a defendant without regard to any statutory
    minimum sentence if the court finds that the defendant, inter alia, “does not have
    more than 1 criminal history point, as determined under the sentencing guidelines .
    . . .” U.S.S.G. § 5C1.2(a). The statutory mandatory minimum sentence for
    Monzo’s offense -- conspiracy to possess with intent to distribute 50 grams or
    more of methamphetamine -- is ten years’ imprisonment, and the statutory
    maximum is life imprisonment. See 
    21 U.S.C. §§ 841
    (b)(1)(A) and 846.
    In this case, the district court sentenced Monzo to the statutory mandatory
    minimum sentence of 120 months’ imprisonment because he did not qualify for
    relief under the Safety Valve. As we’ve already explained, the district court
    properly counted and assessed three points for Monzo’s Nevada felony drug-
    possession conviction -- which accounts for three of the five points that Monzo
    claims were not harmless. In addition to the three points Monzo received for that
    conviction, he also received one point for his conspiracy-to-distribute-an-imitation-
    controlled-substance conviction, resulting in a total of four criminal history points.
    Monzo does not challenge the point he received for his imitation-controlled-
    substance conviction.
    On this record, even if the district court erred in calculating Monzo’s
    concealing-identity conviction in the computation of his criminal history category,
    the error was harmless. Without the two points for his concealing-identity
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    conviction, Monzo still has four criminal history points -- and with more than one
    criminal history point, he is not eligible for relief under the Safety Valve. As a
    result, the district court could not have disregarded the statutory mandatory
    minimum for his offense. U.S.S.G. § 5C1.2(a). Rather, the district court was
    required to sentence Monzo to at least the statutory minimum sentence of 120
    months’ imprisonment, which is exactly what he received. Any claimed error
    concerning the concealing-identity conviction, therefore, would be harmless,
    because it had no influence, much less any “substantial influence,” on his statutory
    minimum sentence. Rivers, 777 F.3d at 1316.
    AFFIRMED.
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