United States v. Luis Hernandez Carballo , 142 F. App'x 375 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11456 JULY 12, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket Nos. 03-20769-CR-DMM & 03-20285 CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS HERNANDEZ CARBALLO,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 12, 2005)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Luis Hernandez Carballo appeals his ten-month sentence imposed pursuant
to his plea of guilty for failure to appear, in violation of 18 U.S.C. § 3146(a)(1).
Prior to committing this offense, Carballo was charged in a separate action with
three offenses, including possession of stolen goods, in violation of 18 U.S.C.
§ 659. After he was released on bond, he failed to make a scheduled court
appearance. As a result, Carballo was charged with failure to appear.
I. BACKGROUND
Carballo pled guilty to both counts: possession of stolen goods and failure
to appear. The district court consolidated his cases for sentencing purposes,
grouped the two offenses under Chapter 3, Part D of the guidelines, and sentenced
him to a total of 56 months’ imprisonment for both counts. See U.S.S.G. §§
3D1.1, 3D1.2 (2003); see also U.S.S.G. § 2J1.6, application note 3. Because the
statute concerning failures to appear required a consecutive sentence for the
failure to appear conviction, the court split Carballo’s sentence between the two
offenses, sentencing him to 46 months on his stolen goods offense and 10 months
on the failure to appear offense. Carballo appealed. In an unpublished opinion,
we affirmed Carballo’s 46-month sentence for possession of stolen goods. See
United States v. Carballo, No. 04-11457 (11th Cir. Oct. 26, 2004). We now
consider his 10-month sentence for failure to appear.
II. ISSUES
Carballo argues that his ten-month consecutive sentence for failure to
appear was not sufficiently individualized to avoid excessive sentencing disparity
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and does not accomplish the goals of 18 U.S.C. § 3553(a). Thus, he challenges the
district court’s interpretation of the guidelines, asserting that his failure to appear
was accounted for through a two-level increase for obstruction of justice, and
imposing a consecutive sentence results in impermissible double counting.1 He
also claims that the sentence for his stolen goods offense would have been
“dramatically” less under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738(2005), since he received enhancements for amount of loss and possession of a
weapon, which were neither admitted by him nor determined by a jury.
III. STANDARDS OF REVIEW
We review interpretations of the sentencing guidelines de novo. United
States v. Goolsby, 908 F.2d 861, 863 (11th Cir. 1990).
Because Carballo failed to object to the district court’s application of the
guidelines, we review his sentence for plain error. United States v. Shelton, 400
F.3d 1325, 1328-29 (11th Cir. 2005). To prevail under plain error review,
Carballo must establish that there is (1) an error, (2) that is plain, (3) affects his
substantial rights, and (4) seriously affects the fairness, integrity, or public
1
To the extent that Carballo challenges the enhancements he received pursuant to his
sentence for the underlying conviction for possession of stolen goods, we dismiss his appeal.
Because we previously affirmed his conviction and sentence on that count, these objections are not
properly before this court. Carballo, No. 04-11457.
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reputation of judicial proceedings. United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005), petition for cert. filed, 73 U.S.L.W. 3531 (U.S. Feb. 25,
2005) (No. 04-1148).
IV. DISCUSSION
A. Double-Counting
“Impermissible double counting occurs when one part of the guidelines is
applied to increase a defendant’s sentence to reflect the kind of harm that has
already been fully accounted for by another part of the guidelines.” United States
v. Dudley, 102 F.3d 1184, 1186 (11th Cir. 1997). By contrast, we have held that
“[d]ouble counting a factor during sentencing is permissible if the Sentencing
Commission intended the result, and if the result is permissible because each
section concerns conceptually separate notions related to sentencing.” Id. (internal
quotations and citation omitted).
Section 3146(b)(2) provides that a sentence imposed for failure to appear
must run consecutively to the sentence imposed for another offense. 18 U.S.C. §
3146. In addition, the sentencing guideline that applies to the offense of failure to
appear specifically contemplates grouping offenses together under U.S.S.G. §
3D1.2(c) to determine“total punishment.” The Sentencing Commission instructed
district courts to determine this “total punishment” by enhancing the sentence of
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the underlying offense pursuant to § 3C1.1, Obstructing or Impeding the
Administration of Justice. See U.S.S.G. § 2J1.6 application note 3. The resulting
“total punishment” was intended to satisfy the requirements of both the sentencing
guideline for multiple counts, found in § 5G1.2, and the requirement that the
sentence for failure to appear run consecutively to the sentence for the underlying
count. See id.
By splitting the “total punishment” of 56 months into two distinct,
concurrent sentences, the district court did as instructed, yielding a result that was
clearly intended by the Sentencing Commission. The court did not double count,
impermissibly or otherwise, because it did not take into account the conduct
underlying the failure to appear more than once.
B. Booker/Blakely
We have explained that there are two types of Booker error: (1) a Sixth
Amendment error – the error of imposing a sentencing enhancement based on
judicial findings that go beyond the facts admitted by the defendant or found by
the jury, and (2) a statutory error – the error of being sentenced under a mandatory
guidelines system. Shelton, 400 F.3d 1330-31. We construe Carballo’s brief
liberally and conclude that he has raised both types of error.
1. Sixth Amendment Error
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Carballo asserts that the enhancement he received for possession of a
weapon in relation to his possession of stolen goods offense violated the Sixth
Amendment because that fact was found neither by a jury nor admitted by him.
We decline to address this issue as we have already addressed it in our previous
decision.2 Carballo has alleged no other violations of the Sixth Amendment.
Nevertheless, even if we were to consider Carballo’s objection, we would
find no Sixth Amendment error because the enhancement was based on facts in the
presentence investigation report (PSI) to which Carballo abandoned his factual
objections. Id. at 1330. Thus, those facts – including Carballo’s possession of a
firearm – are admitted facts, and the district court’s reliance on them does not
violate the Sixth Amendment. Id.
2. Statutory Error
Carballo also claims that the district court erred by imposing a sentence
pursuant to a mandatory sentencing scheme. Though the district court’s sentence
constitutes plain error, see, e.g., id., Carballo has not carried his burden to show
that his substantial rights were affected by the error.3 Because Carballo cannot
2
See supra note 1.
3
In attempting to make the required showing, Carballo states simply that “[t]his sentence was
not harmless error.” Without more, Carballo cannot meet his burden of showing that his sentence
would have been different.
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show a reasonable probability of a different result, we find no statutory Booker
error. See Rodriguez, 398 F.3d at 1300-01.
V. CONCLUSION
Upon review of the record and the parties’ briefs, we discern no reversible
error. Therefore, we affirm Carballo’s 10-month sentence for failure to appear.
AFFIRMED.
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