United States v. Garcia-Sandobal

• Decision Date: 03 January 2013
• Docket Number: No. 11–12196.,11–12196.
• Citation: 703 F.3d 1278
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Erick GARCIA–SANDOBAL, a.k.a. Erik Garcia, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

703 F.3d 1278

UNITED STATES of America, Plaintiff–Appellee,

v.Erick GARCIA–SANDOBAL, a.k.a. Erik Garcia, Defendant–Appellant.

No. 11–12196.

United States Court of Appeals, Eleventh Circuit.

Jan. 3, 2013.

Patricia D. Barksdale, U.S. Atty., Jacksonville, FL, Michelle Thresher Taylor, Donald L. Hansen, Robert E. O'Neill, U.S. Attys., Tampa, FL, for Plaintiff–Appellee.

Rosemary Cakmis, Fed. Pub. Def., Orlando, FL, Amy Levin Weil, The Weil Firm, Atlanta, GA, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before O'CONNOR,^* Associate Justice Retired, and MARCUS and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents three issues arising from the guilty plea and prison sentence of Erick Garcia–Sandobal for unlawful reentry to the United States, 8 U.S.C. § 1326. First, Garcia–Sandobal contends that the district court erred when it accepted his guilty plea and enhanced his sentence for having been removed following a conviction for an aggravated felony. See id. § 1326(b)(2). Second, Garcia–Sandobal contends that the district court erred when it increased his offense level under the Sentencing Guidelines for having been convicted of a crime of violence before his removal. SeeUnited States Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (Nov. 2010). Third, Garcia–Sandobal contends that the district court erred when it increased his criminal history score by counting a prior conviction for disorderly intoxication, Fla. Stat. § 856.011. SeeU.S.S.G. § 4A1.2(c)(1). Garcia–Sandobal waived his first argument when he pleaded guilty; a prior panel precedent, United States v. Romo–Villalobos, 674 F.3d 1246 (11th Cir.2012), forecloses his second argument; and his third argument fails because his conviction is more similar to a conviction for disorderly conduct than to a conviction for public intoxication. We affirm.

I. BACKGROUND

Garcia–Sandobal, a citizen of Honduras, illegally entered the United States in 1993. Between 1993 and 1998, Florida convicted Garcia–Sandobal of several crimes including battery, domestic violence battery, battery of a law enforcement officer, obstructing or opposing an officer with violence, and obstructing or opposing an officer without violence. In 1996, a Florida court convicted Garcia–Sandobal of two counts of battery of a law enforcement officer and one count of obstructing or opposing an officer with violence. For these three convictions, the Florida court sentenced Garcia–Sandobal to two years of probation, but the Florida court later revoked his probation and sentenced him to two years of imprisonment. See Garcia v. State, 701 So.2d 607, 608 (Fla.Dist.Ct.App.1997). An appellate court later revoked the prison sentence and reinstated the term of probation. Id. at 608–09.

After an immigration judge ordered Garcia–Sandobal's removal from the United States, the government removed him to Honduras in March 1998, but Garcia–Sandobal's absence from our shores and our criminal justice system was brief. He unlawfully reentered the United States, and between 2000 and 2010, Florida convicted Garcia–Sandobal of several crimes, including battery, aggravated assault, lewd or lascivious molestation of a child under 12 years of age, marijuana possession, disorderly intoxication, providing a false name to law enforcement officials, driving with an expired tag, and failure to appear in court. The conviction for disorderly intoxication occurred in 2009, and a Florida court sentenced Garcia–Sandobal to serve 50 days in jail followed by 12 months of probation. After he violated the terms of his probation, the Florida court revoked his probation and sentenced him to an additional 60 days in jail.

In October 2010, a federal grand jury indicted Garcia–Sandobal on one count of unlawfully being found in the United States after having been previously removed, 8 U.S.C. §§ 1326(a), (b)(2). Section 1326(a) makes it a crime for an alien previously removed to reenter the United States without the permission of the Attorney General of the United States and provides for a maximum sentence of two years of imprisonment. Id. § 1326(a). Section 1326(b) provides for longer prison sentences under certain conditions: section 1326(b)(1) provides for a maximum prison sentence of 10 years if the defendant was removed following a conviction of a non-aggravated felony or convictions of three or more misdemeanors involving drugs, crimes against the person, or both; and section 1326(b)(2) provides for a maximum prison sentence of 20 years if the defendant was removed following a conviction of an aggravated felony. Id. § 1326(b). The indictment alleged that Garcia–Sandobal committed three aggravated felonies before his removal and listed his 1996 convictions for two counts of battery of a law enforcement officer and one count of obstructing or opposing an officer with violence.

Garcia–Sandobal pleaded guilty to the indictment before a magistrate judge. Garcia–Sandobal's lawyer initially stated that “Mr. Garcia is objecting to the characterization of his prior conviction as an aggravated felony, just the characterization.” The magistrate judge asked, “All right, is this a sentencing issue? I have told him what the penalty is. Are you disputing the penalty?” Garcia–Sandobal's attorney replied, “No, Your Honor, we're not disputing the penalty at this time, no.” After some confusion as to whether the three 1996 convictions remained on his record, Garcia–Sandobal conceded that he had been convicted of an aggravated felony, but he purported to preserve a right to challenge at sentencing this classification of his prior convictions.

The magistrate judge then had the following colloquy with Garcia–Sandobal to ensure that he understood that he was pleading guilty to the offense with the enhanced penalty under section 1326(b)(2):

THE COURT: Mr. Garcia, you appear to be quite verbal and quite familiar with your case. Am I correct in that conclusion?

GARCIA–SANDOBAL (through interpreter): Yes.

THE COURT: Do you understand that I'm interpreting this discussion to mean that you agree that you've been convicted of at least one felony that would carry this maximum term of 20 years imprisonment? Is that what you're agreeing to?

GARCIA–SANDOBAL (through interpreter): Yes.

THE COURT: The other issues are matters for sentencing, but I just want you to understand that you can't say one thing at a plea agreement and then say oh, no, it really wasn't a felony that would qualify me for that penalty. Do you understand that?

GARCIA–SANDOBAL (through interpreter): Yes.

THE COURT: Do you still want to plead guilty?

GARCIA–SANDOBAL (through interpreter): Yes.

THE COURT: How do you wish to plead to the charge in the indictment, guilty or not guilty?

GARCIA–SANDOBAL (through interpreter): Yes, guilty.

THE COURT: Is that because you are guilty of this crime?

GARCIA–SANDOBAL (through interpreter): Yes.

The magistrate judge concluded that the plea was knowing, voluntary, and intelligent, and the magistrate judge recommended that the district court accept the plea. The magistrate judge informed Garcia–Sandobal that he had 14 days to file any objections to the recommendation. SeeFed.R.Crim.P. 59(b)(2). Garcia–Sandobal did not file any objections with the district court, and the district court accepted the guilty plea.

The presentence investigation report calculated Garcia–Sandobal's offense level as 21, his criminal history category as VI, and his guideline range as 77 to 96 months of imprisonment. The calculation of Garcia–Sandobal's offense level included a 16–level enhancement because Garcia–Sandobal “previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). That enhancement was based on Garcia–Sandobal's 1996 conviction for obstructing or opposing an officer with violence. Garcia–Sandobal objected to this enhancement on the ground that his conviction was not a crime of violence, but the district court overruled that objection.

The calculation of Garcia–Sandobal's criminal history score included the assessment of two criminal history points for Garcia–Sandobal's 2009 conviction for disorderly intoxication, in accordance with section 4A1.2(c) of the Sentencing Guidelines. See id.§ 4A1.2(c). The assessment of those two points increased Garcia–Sandobal's criminal history category from V to VI and increased his guideline range from 70 to 87 months of imprisonment to 77 to 96 months of imprisonment. See id., ch. 5, pt. A, Sentencing Table. Garcia–Sandobal objected on the ground that the offense of disorderly intoxication is similar to the offense of “public intoxication,” which is not counted toward the criminal history score. See id.§ 4A1.2(c)(2). The district court overruled this objection on the ground that the offense of disorderly intoxication is more similar to the offense of “disorderly conduct or disturbing the peace,” which may be counted toward a defendant's criminal history score. See id.§ 4A1.2(c)(1). The district court sentenced Garcia–Sandobal to 87 months of imprisonment.

II. STANDARD OF REVIEW

“With respect to Sentencing Guidelines issues, this Court reviews ‘purely legal questions de novo, a district court's factual findings for clear error, and, in most cases, a district court's application of the guidelines to the facts with due deference.’ ” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir.2010) (quoting United States v. Rodriguez–Lopez, 363 F.3d 1134, 1136–37 (11th Cir.2004) (internal quotation marks omitted)). Arguments that are waived before the district court may not be reviewed on appeal. United States v. De La Garza, 516 F.3d 1266, 1271 (11th Cir.2008).

III. DISCUSSION

We divide our discussion in three parts. First, we explain why Garcia–Sandobal waived the argument that the district court should not have accepted his guilty plea and sentenced him...