United States v. Jimy Carmona ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15765 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20668-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMY CARMONA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 14, 2011)
Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
After pleading guilty, Jimy Carmona appeals his sentence of 46 months’
imprisonment for importing 100 grams or more of heroin into the United States, in
violation of 21 U.S.C. § 952(a). After review, we affirm.
When Carmona arrived at Miami Airport on a flight from Colombia, U.S.
Customs inspectors found heroin hidden in the lining of Carmona’s carry-on
backpack. Carmona has never disputed that the actual amount of heroin he
transported was 727.4 grams. In fact, at his plea hearing, Carmona admitted he
transported that amount. Furthermore, Carmona did not object to the presentence
investigation report (“PSI”), which stated that the heroin in Carmona’s backpack
weighed 727.4 grams and recommended a base offense level of 30, pursuant to
U.S.S.G. § 2D1.1(a)(5), based on that drug quantity. Finally, at sentencing,
Carmona did not object when the district court used that undisputed drug quantity
to calculate Carmona’s advisory guidelines range of 46 to 57 months’
imprisonment and then imposed a 46-month sentence, at the low end of the
advisory guidelines range.
Carmona did ask for a downward variance from the advisory guidelines
range because he thought he was carrying 600 grams, rather than 700 grams, of
heroin. The district court denied the request.1
For the first time on appeal, Carmona argues that the district court’s use of
1
Carmona does not challenge that ruling on appeal or argue that his 46-month sentence
was procedurally or substantively unreasonable.
2
the 727.4 grams of heroin to calculate his advisory guidelines range violated the
Sixth Amendment. Citing United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), Carmona contends that the district court could not hold him accountable
for that drug quantity because Carmona did not admit, and the government did not
prove, that Carmona knew that amount of heroin was in his backpack.
Because Carmona raises his Booker objection for the first time on appeal,
we review for plain error. See United States v. Munoz, 430 F.3d 1357, 1374-75
(11th Cir. 2005).2 Here, we find no error, plain or otherwise.
For sentencing purposes, the district court may rely on evidence heard
during trial, the defendant’s admissions during his guilty plea, undisputed
statements in the PSI or evidence presented at the sentencing hearing. United
States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). The failure to object to
factual findings in the PSI, including drug quantity findings, is deemed an
admission of those facts. United States v. Williams 438 F.3d 1272, 1274 (11th
Cir. 2006). Moreover, after Booker, under an advisory guidelines system, the
district courts remain free to impose sentencing enhancements based on judge-
made findings by a preponderance of the evidence so long as the sentence imposed
2
To establish plain error, the appellant must show (1) error, (2) that is plain, (3) that
affects his substantial rights, and (4) seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Munoz, 430 F.3d at 1375.
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does not exceed the statutory maximum sentence. See United States v. Dean, 487
F.3d 840, 854 (11th Cir. 2007); United States v. Dudley, 463 F.3d 1221, 1227-28
(11th Cir. 2006).
Carmona does not contend that his 46-month sentence exceeds the 40-year
statutory maximum sentence authorized by 21 U.S.C. § 960(a)(1), (b)(2)(A).
Thus, the district court did not violate the Sixth Amendment when it calculated
Carmona’s advisory guidelines range based on the undisputed statements in the
PSI and Carmona’s admissions during his plea colloquy.
The fact that Carmona claims he did not know he was carrying 727.4 grams
of heroin in his backpack does not change the result. It is well-settled in this
Circuit, both before and after Booker, that the fact that a drug courier did not know
the exact amount or type of drugs he was transporting does not prevent a district
court from attributing the drugs to him for sentencing purposes. See United States
v. Alvarez-Coria, 447 F.3d 1340, 1344 (11th Cir. 2006); United States v. Gomez,
905 F.2d 1513, 1514-15 (11th Cir. 1990); see also U.S.S.G. § 1B1.3 cmt n.2(a)(1).
AFFIRMED.
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