United States v. Manuel Francisco De La Cruz-Ortiz , 486 F. App'x 27 ( 2012 )


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  •                     Case: 11-14862         Date Filed: 08/02/2012   Page: 1 of 6
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 11-14862
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 5:11-cr-00056-SLB-HGD-1
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,
    versus
    MANUEL FRANCISCO DE LA CRUZ-ORTIZ,
    llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    ________________________
    (August 2, 2012)
    Before HULL, PRYOR and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Case: 11-14862     Date Filed: 08/02/2012    Page: 2 of 6
    Manuel Francisco de la Cruz-Ortiz (Cruz-Ortiz) appeals his sentence of 46
    months’ imprisonment, arguing that the district court improperly calculated the
    applicable sentencing guideline range. Because we conclude that any error in the
    guideline calculations was harmless, we affirm.
    Cruz-Ortiz, a native of Mexico, pleaded guilty to illegal re-entry, in
    violation of 
    8 U.S.C. § 1326
    , and admitted that he had been deported on two prior
    occasions and had re-entered the United States without permission. Cruz-Ortiz
    was deported in 2001 after a conviction in South Carolina for assault and battery
    of a high and aggravated nature (ABHAN). After he returned to the U.S., he was
    convicted of illegal re-entry and deported a second time in 2007. In 2011, he was
    apprehended in Alabama, he admitted to authorities that he was in the U.S.
    illegally, and he was convicted of the instant illegal re-entry charge.
    The probation officer prepared a presentence investigation report (PSI),
    applying a base offense level of 8 under U.S.S.G. § 2L1.2 and adding a 16-level
    enhancement for Cruz-Ortiz’s prior conviction for a crime of violence, the
    ABHAN conviction, under § 2L1.2(b)(1)(A)(ii). With a three-level reduction for
    acceptance of responsibility, Cruz-Ortiz’s adjusted offense level was 21, which,
    when coupled with his criminal history category, yielded a guideline range of 46
    to 57 months’ imprisonment. Cruz-Ortiz objected to the 16-level enhancement on
    2
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    the ground that his ABHAN conviction did not qualify as a crime of violence,
    although he conceded that the Fourth Circuit had found it to be so in his appeal.
    See United States v. Cruz-Ortiz, 184 F. App’x 341 (4th Cir. 2006). He also
    requested a downward departure or variance based on cultural assimilation.
    At sentencing, the court overruled Cruz-Ortiz’s objection to his sentencing
    enhancement, finding that the issue had been litigated previously. The court
    calculated the guideline range to be 46 to 57 months’ imprisonment and found no
    basis to depart or vary from this range. After considering Cruz-Ortiz’s history and
    the fact that he had been deported twice, the court stated that it found a sentence
    within the guideline range appropriate. The court sentenced Cruz-Ortiz to 46
    months’ imprisonment and stated that it would impose the same sentence under
    the 
    18 U.S.C. § 3553
    (a) sentencing factors even if it had resolved the guideline
    issue differently. This is Cruz-Ortiz’s appeal.
    Cruz-Ortiz argues that the district court erred by enhancing his sentence
    under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a crime of violence based on his prior
    ABHAN conviction under South Carolina law. Cruz-Ortiz concedes that the
    Fourth Circuit ruled on this issue in his appeal in a previous case, but he argues
    that recent U.S. Supreme Court decisions and this court’s decision in United States
    v. Palomino Garcia, 
    606 F.3d 1317
     (11th Cir. 2010), call into question the
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    precedential effect of that decision.
    We review de novo whether a defendant’s prior conviction qualifies as a
    “crime of violence” under the Sentencing Guidelines. United States v.
    Rosales-Bruno, 
    676 F.3d 1017
    , 1020 (11th Cir. 2012).
    The Sentencing Guidelines provide for a 16-level enhancement in the
    offense level if a defendant previously was removed after a felony conviction for a
    “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of violence” is
    defined to include aggravated assault “or any other offense under federal, state, or
    local law that has as an element the use, attempted use, or threatened use of
    physical force against the person of another.” Id., comment. (n.1(B)(iii)).
    The government concedes that the district court improperly determined that
    Cruz-Ortiz’s ABHAN conviction was a crime of violence. Nevertheless, where
    the district court states that it would impose the same sentence even if it had
    resolved the guideline issue differently, we will conclude that the guideline error
    was harmless and affirm the sentence imposed as long as that sentence is
    reasonable. United States v. Lozano, 
    490 F.3d 1317
    , 1324-25 (11th Cir. 2007);
    United States v. Keene, 
    470 F.3d 1347
    , 1349 (11th Cir. 2006). In determining
    whether the sentence is reasonable, we assume that the advisory guidelines range
    would have been reduced according to the defendant’s arguments. Lozano, 490
    4
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    F.3d at 1324. We then ask whether the final sentence resulting from consideration
    of the § 3553(a) factors would still be reasonable. Id.
    The district court is required to impose a sentence “sufficient, but not
    greater than necessary to comply with the purposes” listed in 
    18 U.S.C. § 3553
    (a)(2), including the need to reflect the seriousness of the offense, promote
    respect for the law, provide just punishment for the offense, deter criminal
    conduct, protect the public from the defendant’s future criminal conduct, and
    provide the defendant with needed educational or vocational training or medical
    care. See 
    18 U.S.C. § 3553
    (a)(2)(A)-(D). In imposing a particular sentence, the
    court must also consider the nature and circumstances of the offense, the history
    and characteristics of the defendant, the kinds of sentences available, the
    applicable guideline range, the pertinent policy statements of the Sentencing
    Commission, the need to avoid unwarranted sentencing disparities, and the need to
    provide restitution to victims. 
    Id.
     § 3553(a)(1), (3)-(7). A sentence imposed well
    below the statutory maximum penalty is an indicator of a reasonable sentence.
    United States v. Gonzalez, 
    550 F.3d 1319
    , 1324 (11th Cir. 2008).
    Here, the sentence imposed is reasonable. Because Cruz-Ortiz had prior
    convictions, the statutory maximum penalty he faced was ten years’
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    imprisonment.1 See 
    8 U.S.C. § 1326
    (b)(1). The 46-month sentence imposed is
    well below this potential maximum sentence. Moreover, the court explained that
    it considered the circumstances of the offense, the need to provide deterrence, and
    possible disparities with other sentences. The court noted that Cruz-Ortiz already
    had been deported twice and had been sentenced to 46 months’ imprisonment for
    his prior illegal-re-entry conviction. Thus, the court found that a sentence below
    the guideline range would not meet the sentencing factors and provide the
    necessary deterrence. We cannot conclude on these facts that the sentence
    imposed was unreasonable. Accordingly, we affirm Cruz-Ortiz’s sentence.
    AFFIRMED.
    1
    The government filed a notice of its intent to rely on Cruz-Ortiz’s prior convictions as
    qualifiers for a twenty-year maximum sentence under 
    8 U.S.C. § 1326
    (b)(2). That section enhances
    the penalty for defendants convicted of an “aggravated felony.” 
    8 U.S.C. § 1326
    (b)(2). An
    “aggravated felony” as defined in 
    8 U.S.C. § 1101
    (a)(43) includes a crime of violence. Because the
    government has conceded that Cruz-Ortiz’s prior conviction is not a crime of violence, we assume
    the maximum sentence was ten years’ imprisonment under § 1326(b)(1).
    6