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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13848
Non-Argument Calendar
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D.C. Docket No. 8:17-cr-00092-VMC-MAP-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DANIEL DERAS LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 25, 2018)
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Defendant Jose Lopez received a 120-month sentence after pleading guilty
to two charges: (1) conspiracy to possess with intent to distribute five kilograms or
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more of cocaine while on board a vessel subject to the jurisdiction of the United
States; and (2) possession with intent to distribute five kilograms or more of
cocaine while on board a vessel subject to the jurisdiction of the United States. On
appeal, Lopez argues that the district court erred in denying him a minor-role
adjustment pursuant to U.S.S.G. § 3B1.2. We hold that even if the district court
did err—an issue that we need not reach—any error was harmless because Lopez
received the statutory minimum sentence for his crimes. Moreover, and in any
event, we hold that because Lopez invited the very error that he now alleges, he is
precluded from challenging it.
“This Court has long and repeatedly held that a district court’s determination
of a defendant’s role in the offense is a finding of fact to be reviewed only for clear
error.” United States v. Rodriguez De Varon,
175 F.3d 930, 937 (11th Cir. 1999).
“[W]hen, as here, the district court correctly imposes a statutory mandatory
minimum sentence that is greater than a defendant’s Guidelines range, any error in
the guidelines calculations is harmless, and we need not address these arguments.”
United States v. Chirino-Alvarez,
615 F.3d 1344, 1346 (11th Cir. 2010) (internal
citations, quotations omitted).
Here, the district court sentenced Lopez to a 120-month sentence, which is
the mandatory minimum sentence for his crimes. 21 U.S.C. § 960(b)(1)(B)(ii).
Any guidelines calculation error is therefore harmless, and we need not entertain
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Lopez’s contention that the district court erred in denying him a minor-role
downward adjustment. See
Chirino-Alvarez, 615 F.3d at 1346.
Separately, “[i]t is a cardinal rule of appellate review that a party may not
challenge as error a ruling or other trial proceeding invited by that party.” United
States v. Ross,
131 F.3d 970, 988 (11th Cir. 1997) (internal quotations omitted).
We have held that where a defendant “expressly acknowledged the court could
impose” a condition in its sentence and “did not object to a sentence including [that
condition],” the defendant “induced or invited the district court to impose a
sentence that included [the condition]” and was thus “precluded from claiming the
court erred” in its sentencing. United States v. Love,
449 F.3d 1154, 1157 (11th
Cir. 2006).
Here, Lopez invited the error that he now alleges. Not only did Lopez
submit a sentencing memorandum in which he suggested that “[the district] court
should impose a sentence of 120 months which is the mandatory minimum,” but he
also requested at sentencing that the district court “consider the arguments that [he]
made . . . and impose the mandatory minimum sentence.” The district court then
sentenced Lopez to 120 months’ imprisonment, and Lopez stated that he had “[n]o
other objections other than those already made.” Not only did Lopez “expressly
acknowledge[]” his sentence’s legitimacy and fail to object, as in Love, but he
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specifically requested the sentence that he received and is thus “precluded from
claiming the court
erred.” 449 F.3d at 1157.
For the foregoing reasons, we AFFIRM the district court’s decision on the
merits. Additionally, we REMAND for the limited purpose of correcting the
scrivener’s error in the written judgment regarding Count Two. See United States
v. Wimbush,
103 F.3d 968, 970 (11th Cir. 1997). The second count with which the
United States charged Lopez (and to which Lopez pled guilty) was possession with
intent to distribute—not conspiracy to possess with intent to distribute—five
kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of
the United States.
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