United States v. Jose Pacheco-Tzul , 486 F. App'x 826 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-16164
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-14010-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
JOSE PACHECO-TZUL,
a.k.a. Jose Teodoro Pacheco-Tzul,
a.k.a. Jose Pacheco,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(August 14, 2012)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Jose Pacheco-Tzul, a native of Guatemala, pleaded guilty to reentering the
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United States after having been deported, in violation of 8 U.S.C. § 1326(a) and
(b)(2), and was sentenced to 57 months’ imprisonment. He appeals that sentence,
contending the district court incorrectly calculated his sentencing guidelines range
based on an erroneous conclusion that he had previously been convicted of a crime
of violence. Because we find that he has waived any challenge to the alternative
basis the district court gave for his sentence, however, any error in that calculation
is necessarily harmless, and we accordingly affirm.
In 2007, Pacheco-Tzul was convicted in Florida state court of child abuse
under Florida Statute § 827.03. He was deported in May of 2010. But in January
2011, he was once again arrested in Florida and charged with illegally reentering
the United States following his 2010 deportation. Pacheco-Tzul pleaded guilty to
that charge.
The Probation Office included within its recommended sentencing
guidelines calculation a 16-level enhancement for Pacheco-Tzul’s prior Florida
child abuse conviction as a “crime of violence” within the meaning of U.S.S.G.
§ 2L1.2(b)(1)(A). Pacheco-Tzul objected to the enhancement and the factual
assertions upon which it was based. But, at his sentencing hearing, the district
court overruled Pacheco-Tzul’s objection, finding that there was an adequate
factual basis in the records of Pacheco-Tzul’s state proceedings to conclude that
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his child abuse conviction was indeed a crime of violence. The district court went
on to state that, “in the alternative,” even if the conviction “did not constitute a
crime of violence, then for the record I would say that this Court would vary
upward” to the same 57-month sentence the court actually imposed. And the court
discussed the sentencing factors under 18 U.S.C. § 3553 that supported such a
variance.
We have held that, when a district court indicates that it would impose the
same sentence even if it is ultimately proved wrong on a disputed guidelines issue,
we need not decide the guidelines issue if the sentence is otherwise reasonable.
United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006) (“[I]t is [neither]
necessary to decide guidelines issues or remand cases for new sentence
proceedings [based on a] guidelines error” if the district court reasonably ruled
that “it would have imposed the same sentence, using its § 3553(a) authority, even
without the [guidelines] enhancement.” (internal quotation marks omitted)). That
is so because, if the district court reasonably decides that a sentence is appropriate
based upon the § 3553 factors regardless of the guideline range, any error in
calculating the guidelines range would be harmless. United States v. Lozano, 490
F.3d 1317, 1324-25 (11th Cir. 2007).
On appeal, Pacheco-Tzul contends that Florida Statute § 827.03 proscribes
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both conduct that would qualify as a crime of violence and conduct that would not,
and that the records the district court was entitled to rely upon do not definitively
establish that his child abuse conviction was in the former category. His brief on
appeal is devoted exclusively to arguing that, as a result, the district court’s
guidelines calculation was erroneous. At no point does he address the district
court’s alternative ruling that a 57-month sentence was reasonable in light of the
sentencing factors even if its guidelines calculation was incorrect.
Because he has not challenged the reasonableness of his sentence even
assuming that the calculation was wrong, Pacheco-Tzul has abandoned any
argument he may have had that the alleged guidelines error was not harmless.
United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (reiterating
that an argument not discussed in an initial brief is abandoned). As a result, we
need not reach whether adequate evidence supported application of the 16-level
crime-of-violence enhancement for Pacheco-Tzul’s child abuse conviction. See
Lozano, 490 F.3d at 1324 (“Our review is ‘deferential’ to the district court, and it
is the defendants’ burden to establish that their sentences are unreasonable in
light of the record and the section 3553(a) factors.” (emphasis added)).
AFFIRMED.
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