United States v. Daniel Casamayor ( 2018 )


Menu:
  •            Case: 16-13616   Date Filed: 01/05/2018   Page: 1 of 16
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-13616
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:13-cr-20879-UU-2
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    DANIEL CASAMAYOR,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (January 5, 2018)
    Before MARTIN, JILL PRYOR, and HULL, Circuit Judges.
    PER CURIAM:
    Case: 16-13616    Date Filed: 01/05/2018    Page: 2 of 16
    Following a remand by this Court for resentencing on one count, Daniel
    Casamayor Rojas (“Casamayor”) appeals his total sentence of 262 months’
    imprisonment on multiple counts relating to his planned robbery of a marijuana
    “grow house.” After review, we affirm Casamayor’s sentence.
    I. BACKGROUND FACTS
    A.    Guilty Plea and Original Sentencing
    In 2014, Casamayor pled guilty to: (1) conspiring to commit Hobbs Act
    robbery, in violation of 
    18 U.S.C. § 1951
    (a) (Count 1); (2) conspiring to possess
    with intent to distribute less than 50 kilograms of marijuana, in violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(D) and 846 (Count 2); (3) being a felon in possession
    of a firearm, in violation of 
    18 U.S.C. §§ 922
    (g)(1) and 924(e) (Count 3); (4)
    conspiring to use and carry a firearm during and in relation to the crime of violence
    charged in Count 1 and the drug trafficking crime charged in Count 2, and to
    possess the firearm in furtherance of those crimes, in violation of 
    18 U.S.C. § 924
    (o) (Count 5); and (5) using and carrying a firearm during and in relation to
    the crime of violence charged in Count 1 and the drug trafficking crime charged in
    Count 2, and to possess a firearm in furtherance of those crimes, in violation of 
    18 U.S.C. §§ 924
    (c)(1)(A) and 2 (Count 6).
    At an October 2014 sentencing hearing, the district court determined, inter
    alia, that Casamayor qualified as a career offender under the Sentencing Guidelines
    2
    Case: 16-13616    Date Filed: 01/05/2018    Page: 3 of 16
    and as an armed career criminal under the Armed Career Criminal Act (“ACCA”),
    
    18 U.S.C. § 924
    (e)(1)(B). Over Casamayor’s objection, the district court further
    concluded that Casamayor’s 2008 Florida conviction for fleeing-at-high-speed was
    a crime of violence for purposes of U.S.S.G. § 4B1.2(a). The district court did not
    identify which of Casamayor’s many other felony convictions supported his
    ACCA status.
    As a result of Casamayor’s career offender status, the district court
    determined that Casamayor’s advisory guidelines range of 262 to 327 months was
    preset for all five counts of conviction by the career offender table in U.S.S.G.
    § 4B1.1(c). The district court denied Casamayor’s request for a downward
    variance and chose a 262-month total sentence, at the low end of the advisory
    guidelines range. Specifically, the district court’s total 262-month sentence was
    composed of: (1) concurrent 202-month sentences on Counts 1, 3 and 5; (2) a 60-
    month sentence on Count 2, to run concurrent with Counts 1, 3, and 5; and (3) a
    60-month sentence on Count 6 to run consecutive to all the other counts.
    B.    First Appeal and Remand
    In his first appeal, Casamayor argued, inter alia, that he did not qualify as
    either a career offender under the Sentencing Guidelines or as an armed career
    criminal under the ACCA. Citing the then-pending Supreme Court case of
    Johnson v. United States, 576 U.S. ___, 
    135 S. Ct. 2551
     (2015), Casamayor argued
    3
    Case: 16-13616   Date Filed: 01/05/2018    Page: 4 of 16
    that his 2008 Florida fleeing-at-high-speed conviction no longer qualified as a
    predicate offense for either designation because the residual clauses for both
    U.S.S.G. § 4B1.2(a) and the ACCA were unconstitutionally vague. While
    Casamayor’s appeal was pending, the Supreme Court issued Johnson, which held
    that the ACCA’s residual clause was unconstitutionally vague. Id. at ___, 
    135 S. Ct. at 2563
    .
    On direct appeal, this Court affirmed Casamayor’s career offender
    designation, explaining that Johnson did not address the career offender provisions
    of the Sentencing Guidelines and that we were bound by United States v. Matchett,
    
    802 F.3d 1185
     (11th Cir. 2015), in which this Court had already held that
    § 4B1.2(a)’s residual clause was not unconstitutionally vague in light of Johnson.
    See United States v. Casamayor, 643 F. App’x 905, 911-12 (11th Cir. 2016).
    Thus, we affirmed Casamayor’s sentences on Counts 1, 2, 5, and 6. Id. at 912.
    As to Casamayor’s ACCA-enhanced sentence on Count 3, however, this
    Court noted that the district court had not identified which of Casamayor’s prior
    felony convictions it relied upon. Id. at 911. Thus, the Court vacated
    “Casamayor’s sentence on Count 3 and remand[ed] for resentencing on that
    count.” Id. at 912. In so doing, the Court stated that on remand, the district court
    should “determine in the first instance whether the ACCA-enhanced sentence of
    4
    Case: 16-13616     Date Filed: 01/05/2018   Page: 5 of 16
    202 months on Count 3 may be supported by any of Casamayor’s other prior
    felony convictions and if so under what clause.” Id. at 911.
    C.    Resentencing on Remand
    Prior to resentencing, the probation office filed an addendum to the
    presentence investigation report (“PSI”). The addendum identified these four of
    Casamayor’s prior convictions that qualified as violent felonies under the ACCA’s
    elements clause: (1) a September 6, 2001 Florida conviction for aggravated assault
    with a deadly weapon, under Florida Statutes §§ 784.021(1)(A) and 775.087(1);
    (2) a January 31, 2012 Florida conviction for strong-arm robbery that occurred on
    December 22, 2010, under Florida Statutes §§ 812.13(2)(C) and 777.011; (3) a
    separate January 31, 2012 Florida conviction for armed robbery with a firearm or
    deadly weapon that occurred on December 11, 2010, under Florida Statutes
    §§ 812.13(2)(A), 921.0024(1)(B), and 775.087; and (4) a separate January 31,
    2012 Florida conviction for strong-arm robbery, under Florida Statutes
    §§ 812.13(2)(C) and 777.011, and aggravated battery with great bodily harm,
    under Florida Statutes §§ 784.045(1)(a)1 and 777.011, both of which occurred on
    January 8, 2011.
    Casamayor filed written objections to the PSI. As to his status under the
    ACCA, Casamayor did not dispute that he had the predicate convictions listed in
    the addendum. Instead, Casamayor argued that his convictions for aggravated
    5
    Case: 16-13616     Date Filed: 01/05/2018   Page: 6 of 16
    assault and strong-arm robbery did not qualify as ACCA predicate offenses, and
    thus he did not qualify as an armed career criminal. Casamayor contended that
    both of these Florida offenses could be committed “without the use of physical
    force against the person of another.” Casamayor also objected to his career
    offender status under the Sentencing Guidelines, arguing that his Florida
    conviction for fleeing-at-high-speed no longer qualified as a crime of violence
    because the Sentencing Commission had recently amended the career offender
    guideline to delete the residual clause.
    The government responded that all of Casamayor’s ACCA predicate
    convictions qualified under the elements clause, which Johnson left undisturbed.
    As for Casamayor’s career offender status, the government argued that because
    this Court already had concluded that Casamayor was a career offender during his
    first appeal, the law of the case doctrine precluded him from challenging that
    designation at resentencing. Alternatively, the government contended that
    Casamayor had multiple alternative felony convictions on which to base his career
    offender status.
    At resentencing, the district court reviewed this Court’s instruction to
    determine whether any of Casamayor’s prior felony convictions supported his
    ACCA-enhanced sentence on Count 3. Casamayor conceded that his January 2012
    conviction for armed robbery with a firearm or deadly weapon qualified as a
    6
    Case: 16-13616   Date Filed: 01/05/2018   Page: 7 of 16
    violent felony for ACCA purposes. Over Casamayor’s objection, the district court
    concluded that, in addition to that 2012 armed robbery conviction, Casamayor’s
    2001 conviction for aggravated assault with a deadly weapon, his two separate
    January 2012 convictions for strong-arm robbery, and his January 2012 conviction
    for aggravated battery with great bodily harm also qualified as violent felonies
    under the ACCA’s elements clause.
    Casamayor pointed out that the Sentencing Commission’s removal of the
    residual clause from the career offender provision would go into effect in about 60
    days. Casamayor argued that he expected the Sentencing Commission to make the
    amendment retroactive and therefore the district court should reduce his sentence
    now to avoid a future 
    18 U.S.C. § 3582
    (c) motion. The district court declined to
    do so, stating that it would address that issue if the amendment was made
    retroactive.
    After the defendant’s allocution, the district court resentenced Casamayor to
    the same 262-month total sentence, consisting of 202-month concurrent sentences
    on Counts 1, 3, and 5, a 60-month sentence on Count 2 to run concurrent with
    Counts 1, 3, and 5, and a consecutive 60-month sentence on Count 6.
    7
    Case: 16-13616      Date Filed: 01/05/2018    Page: 8 of 16
    II. DISCUSSION
    A.    Casamayor’s Newly Raised Challenges to His Guilty Plea
    For the first time in this second appeal, Casamayor argues that his guilty
    plea to all five counts was invalid for various reasons. Because Casamayor could
    have, but did not, challenge his guilty plea in his first appeal, his present argument
    as to his plea is barred by the doctrine of the law of the case.
    “Under the law-of-the-case doctrine, an issue decided at one stage of a case
    is binding at later stages of the same case.” United States v. Escobar-Urrego, 
    110 F.3d 1556
    , 1560 (11th Cir. 1997). Under the doctrine, district court rulings that
    have not been challenged on a first appeal will not be disturbed in a subsequent
    appeal. See 
    id. at 1560-61
     (holding that, because the defendant had the
    opportunity to appeal the determination as to the amount of drugs in his first appeal
    but failed to do so, the law of the case barred him from litigating that issue in his
    second appeal). Further, “an appellant should raise all trial errors in his appeal of
    the judgment and sentence,” and an appellant is deemed to have waived his right to
    raise issues on a second appeal that he did not raise in his first. United States v.
    Fiallo-Jacome, 
    874 F.2d 1479
    , 1481-83 (11th Cir. 1989) (quotation marks omitted)
    (holding that a defendant who failed to raise challenges to his trial in his first
    appeal was deemed to have waived review of those issues in his second appeal and
    would not get “two bites at the appellate apple”).
    8
    Case: 16-13616       Date Filed: 01/05/2018      Page: 9 of 16
    Moreover, none of the exceptions to the law of the case doctrine apply here,
    as no new evidence about Casamayor’s plea was presented on remand, there was
    no intervening decision applicable to Casamayor’s guilty plea, and there has been
    no showing of a manifest injustice. See Baumer v. United States, 
    685 F.2d 1318
    ,
    1320 (11th Cir. 1982). Thus, Casamayor’s challenge to his guilty plea is barred by
    the law of the case doctrine.
    Alternatively, even if we addressed Casamayor’s guilty plea claims, our
    review would be for plain error, and Casamayor has shown none. See United
    States v. Moriarty, 
    429 F.3d 1012
    , 1018-19 (11th Cir. 2005). First, there was a
    sufficient factual basis to support Casamayor’s guilty plea to each count.1 At his
    plea colloquy, Casamayor agreed to every fact in his factual proffer, which stated
    that Casamayor and his co-conspirators agreed to rob a marijuana growhouse, met
    to plan the robbery and decided that they needed to use firearms during the
    robbery, and then were arrested while driving to a rendezvous point with loaded
    firearms. The proffer stated that following his arrest, Casamayor provided post-
    Miranda statements acknowledging his involvement in coordinating the drug-
    related robbery conspiracy, including contacting one co-conspirator and securing
    her help to find another gunman and then meeting the other gunman to discuss the
    1
    On appeal, Casamayor does not challenge his conviction on Count 3 for being a felon in
    possession of a firearm.
    9
    Case: 16-13616     Date Filed: 01/05/2018    Page: 10 of 16
    robbery’s execution. The proffer also stated that the parties agreed that the
    conspiracy would have obstructed, delayed, or affected interstate commerce.
    Based on Casamayor’s factual proffer, the district court did not err in
    concluding as to Count 1 that Casamayor: (1) agreed to commit a robbery of a
    marijuana operation, which constitutes economic activity that affects federal
    commerce; (2) knew of the conspiracy’s goal; and (3) voluntarily participated in
    achieving that goal. See Taylor v. United States, ___ U.S. ___, 
    136 S. Ct. 2074
    ,
    2080-81 (2016); United States v. To, 
    144 F.3d 737
    , 748 (11th Cir. 1998).
    Likewise, as to Count 2, the district court did not err in concluding that the goal of
    the scheme was to possess with intent to distribute the marijuana Casamayor and
    his co-conspirators planned to take and that Casamayor was guilty of the drug
    crime of conspiracy to possess with intent to distribute marijuana. See United
    States v. Charles, 
    313 F.3d 1278
    , 1284 (11th Cir. 2002). As to the § 924 firearm
    convictions in Counts 5 and 6, Casamayor admitted that he and his co-conspirators
    needed to carry guns to execute the marijuana-growhouse robbery and that a
    loaded firearm was found in his vehicle when he was arrested.
    In addition, the district court did not err in accepting Casamayor’s guilty
    plea. The record demonstrates that at his plea colloquy, Casamayor testified that:
    (1) no one had coerced, threatened, or promised him anything in exchange for
    pleading guilty; (2) Casamayor received a copy of the indictment, discussed it fully
    10
    Case: 16-13616       Date Filed: 01/05/2018       Page: 11 of 16
    with counsel, and counsel explained what the government would need to prove in
    order to convict him of the charges against him; and (3) counsel explained the
    consequences of being convicted and Casamayor understood them fully. The
    record also confirms that the district court explained the consequences of his plea.
    Accordingly, the district court complied with the three core concerns of Rule 11,
    and Casamayor’s guilty plea was knowing and voluntarily. See United States v.
    Jones, 
    143 F.3d 1417
    , 1418-19 (11th Cir. 1998).2
    In sum, Casamayor cannot show error, much less plain error, with regard to
    his guilty plea.
    B.     ACCA Sentence on Count 3
    Under the ACCA, a defendant convicted of an 
    18 U.S.C. § 922
    (g) firearm
    offense is subject to a mandatory minimum 180-month sentence if he has three
    prior convictions for a “violent felony” or a “serious drug offense.” 
    18 U.S.C. § 924
    (e)(1). A prior conviction qualifies as a “violent felony” under the ACCA’s
    2
    We recognize that Casamayor also makes a Johnson argument that his Count 1
    conviction for Hobbs Act robbery conspiracy is not a crime of violence for purposes of his two
    § 924 convictions in Counts 5 and 6. This, however, ignores that Casamayor also pled guilty to
    the drug trafficking crime in Count 2, which is expressly referenced as a predicate crime for his
    § 924 offenses in Counts 5 and 6. At a minimum, Casamayor has shown no plain error. Thus,
    here we need not examine if conspiracy to commit Hobbs Act robbery is a crime of violence for
    purposes of § 924(c). In light of the foregoing, Casamayor’s request to stay proceedings pending
    the Supreme Court’s decision in Sessions v. Dimaya, No. 15-1498, is DENIED.
    11
    Case: 16-13616       Date Filed: 01/05/2018       Page: 12 of 16
    elements clause if it “has as an element the use, attempted use, or threatened use of
    physical force against the person of another.” Id. § 924(e)(2)(B)(i). 3
    On appeal, Casamayor argues that the district court erred in concluding that
    he had three prior convictions that qualified as violent felonies under the elements
    clause. Casamayor does not challenge the district court’s determination as to two
    of his prior convictions—armed robbery with a firearm or deadly weapon and
    aggravated battery with great bodily harm. Casamayor contends, however, that
    none of his other predicates the district court identified—his conviction for
    aggravated assault with a deadly weapon in 2001 and his two separate convictions
    for strong-arm robbery in 2012—qualify under the elements clause.
    As Casamayor acknowledges, however, his arguments as to these Florida
    convictions are foreclosed by this Court’s binding precedent. This Court has held
    that Florida aggravated assault with a deadly weapon under Florida Statutes
    § 784.021 categorically qualifies as a violent felony under the ACCA’s elements
    clause. See Turner v. Warden Coleman FCI (Medium), 
    709 F.3d 1328
    , 1338 (11th
    Cir. 2013), abrogated in part on other grounds by Johnson v. United States, ___
    U.S. ___, 
    135 S. Ct. 2551
     (2015). Moreover this Court has held that Turner
    remains binding precedent after the Supreme Court’s decisions in Mathis v. United
    3
    This Court reviews de novo whether a prior conviction qualifies as a violent felony
    within the meaning of the ACCA. United States v. Howard, 
    742 F.3d 1334
    , 1341 (11th Cir.
    2014).
    12
    Case: 16-13616       Date Filed: 01/05/2018      Page: 13 of 16
    States, ___ U.S. ____, 
    136 S. Ct. 2243
     (2016) and Descamps v. United States, 
    570 U.S. 254
    , 
    133 S. Ct. 2276
     (2013). See United States v. Golden, 
    854 F.3d 1256
    ,
    1257 (11th Cir. 2017).
    Likewise, this Court has held that Florida strong-arm robbery under Florida
    Statutes § 812.13 categorically qualifies as a violent felony under the ACCA’s
    elements clause. United States v. Fritts, 
    841 F.3d 937
    , 940 (11th Cir. 2016), cert.
    denied, ___ U.S. ___, 
    137 S. Ct. 2264
     (2017); United States v. Dowd, 
    451 F.3d 1244
    , 1255 (11th Cir. 2006); see also United States v. Lockley, 
    632 F.3d 1238
    ,
    1245 (11th Cir. 2011) (involving the identical elements clause of the career
    offender provision). Thus, under our binding precedent, either Casamayor’s 2001
    conviction for aggravated assault or one of his two strong-arm robbery convictions
    in 2012 may serve as the third predicate violent felony. 4
    Accordingly, the district court did not err in determining that Casamayor had
    three prior “violent felony” convictions and properly applied the ACCA
    enhancement to Casamayor’s sentence on Count 3.
    4
    We note that one of Casamayor’s strong-arm robbery offenses was committed on the
    same day as his aggravated battery with great bodily harm, January 8, 2011, and therefore may
    not satisfy the ACCA’s requirement that the offenses be “committed on occasions different from
    one another.” See 
    18 U.S.C. § 924
    (e)(1). Casamayor has never raised this issue, but even if he
    had, we would not need to address it because Casamayor has more than enough violent felonies
    to support his ACCA sentence.
    13
    Case: 16-13616     Date Filed: 01/05/2018   Page: 14 of 16
    C.    Career Offender
    In this second appeal, Casamayor raises a new and completely different
    challenge to his career offender status. Specifically, Casamayor argues that the
    career offender table in U.S.S.G. § 4B1.1(c)(3), which was used to calculate
    Casamayor’s advisory guidelines range, runs afoul of the Supreme Court’s
    decision in United States v. LaBonte, 
    520 U.S. 751
    , 
    117 S. Ct. 1673
     (1997), and
    exceeds the Sentencing Commission’s authority under 
    28 U.S.C. § 994
    (h).
    Casamayor argues that his preset advisory guidelines range of 262 to 327 months
    imprisonment was “entirely disproportionate to” his statutory maximum sentences
    of twenty years for Count 1 and five years for Count 2. See 
    21 U.S.C. § 841
    (b)(1)(D), 
    18 U.S.C. § 1951
    (a).
    As with Casamayor’s challenge to his guilty plea, his arguments about
    § 4B1.1(c)(3)’s career offender table could have been, but were not, raised in his
    first appeal of his sentence. Indeed, in his first appeal, Casamayor raised other
    arguments as to his career offender status, but failed to make the arguments he
    raises now. Moreover, in his first appeal, this Court affirmed the district court’s
    determination that Casamayor qualified as a career offender under § 4B1.1(a).
    Accordingly, Casamayor’s new challenge to § 4B1.1(c)(3) is barred by the law of
    the case doctrine.
    14
    Case: 16-13616       Date Filed: 01/05/2018       Page: 15 of 16
    In any event, Casamayor has not shown plain error. Casamayor does not
    cite any binding precedent holding that a career offender sentence is invalid where
    the advisory guidelines range calculated under § 4B1.1(c)(3) exceeds the
    maximum terms for one or more of the counts of conviction. Notably, LaBonte,
    cited by Casamayor, does not stand for such a proposition. Rather, LaBonte
    merely noted that 
    28 U.S.C. § 994
    (h) directed the Sentencing Commission to
    assure that the Sentencing Guidelines specify a sentence at or near the maximum
    authorized for defendants who (like Casamayor) had been convicted of a felony
    crime of violence or a controlled substance offense after having been convicted of
    two or more such felonies. 
    520 U.S. at 753
    ,
    117 S. Ct. at 1675
    .
    In Casamayor’s case, the district court’s application of the career offender
    table accomplished this goal, as Casamayor’s term of imprisonment for each count
    is either at or near the maximum term authorized by statute, including his 202-
    month term on Count 1 and his 60-month term on Count 2. 5 Furthermore, the
    Sentencing Guidelines are clear that if an advisory guidelines range exceeds the
    5
    To the extent Casamayor challenges his career offender status based on his having two
    prior crimes of violence, this argument plainly lacks merit. The district court’s determination on
    remand that Casamayor had at least four prior convictions that qualified as “violent felonies”
    under the ACCA’s elements clause necessarily means that Casamayor also has at least four prior
    convictions that qualify as “crimes of violence” under the career offender provision’s identical
    elements clause. See U.S.S.G. §§ 4B1.1(a), 4B1.2(a)(1). Further, since Casamayor’s last appeal,
    the Supreme Court has held that the advisory Sentencing Guidelines, including U.S.S.G.
    § 4B1.2(a)(1), are not subject to constitutional vagueness challenges like the one raised in
    Johnson. See Beckles v. United States, ___ U.S. ___, 
    137 S. Ct. 886
    , 890 (2017).
    15
    Case: 16-13616     Date Filed: 01/05/2018    Page: 16 of 16
    statutory maximum penalty, the statutory maximum prevails. See U.S.S.G.
    §§ 5G1.1(a), (c)(1), 5G1.2(e) & cmt. n.3(B).
    Accordingly, the district court did not err, much less plainly err, in
    calculating Casamayor’s advisory guidelines using the career offender table in
    U.S.S.G. § 4B1.1(c)(3).
    AFFIRMED.
    16