United States v. Cesar Alberto Tavarez , 605 F. App'x 950 ( 2015 )

Case: 14-11334 Date Filed: 05/22/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11334
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20744-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR ALBERTO TAVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 22, 2015)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Cesar Alberto Tavarez appeals his sentence of 60 months of imprisonment
for conspiring to possess with intent to distribute 500 grams or more of cocaine. 21
U.S.C. §§ 841(b)(1)(B), 846. Tavarez argues that the district court erred by adding
one point to his criminal history score based on a prior uncounseled misdemeanor
conviction, United States Sentencing Guidelines Manual § 4A1.1(c) (Nov. 2013),
which made him ineligible for relief under the safety valve, id. § 5C1.2(a)(1). The
district court ruled that it could assess Tavarez one criminal history point because
he was not entitled to have the assistance of counsel for a misdemeanor offense for
which he received a sentence of probation and, alternatively, that one criminal
history point could be assessed for Tavarez’s monetary fine regardless of whether
his sentence of probation was imposed in violation of the Sixth Amendment, see
United States v. Acuna-Reyna, 677 F.3d 1282 (11th Cir. 2012). Because Tavarez
fails to present any argument against the alternative finding by the district court,
we affirm.
Tavarez contests the addition of one point to his criminal history based on
his prior uncounseled conviction because his sentence of probation could have led
to an actual deprivation of his liberty, but we need not address this argument
because Tavarez fails to challenge the alternative finding by the district court. The
district court assessed the criminal history point based on our decision in Acuna-
Reyna where the defendant, like Tavarez, argued that he could not be assessed a
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Case: 14-11334 Date Filed: 05/22/2015 Page: 3 of 3
criminal history point based on a prior uncounseled misdemeanor conviction for
which he was sentenced to probation. Id. at 1283–84. We avoided deciding that
issue and held that, even assuming that the sentence of probation violated the
defendant’s right to counsel and could not be considered in determining his
criminal history, his prior conviction and monetary fine were still valid and could
be counted as a prior sentence under section 4A1.1(c) of the Sentencing
Guidelines. Id. at 1285–86. Tavarez fails to challenge the alternative finding that,
under Acuna-Reyna, his monetary fine counts as a prior sentence. We will not
reverse a “judgment that is based on multiple, independent grounds, [unless] an
appellant . . . convinces us that every stated ground for the judgment against him is
incorrect,” and Tavarez has abandoned any challenge that he could have made to
the alternative ruling. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
680 (11th Cir.2014). For that reason, Tavarez’s sentence “is due to be affirmed,”
id.We AFFIRM Tavarez’s sentence.
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