United States v. Roberto Delgado , 481 F. App'x 531 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-14819
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20157-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO DELGADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 11, 2012)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Roberto Delgado appeals the 120-month sentence imposed following his
conviction for bank robbery, in violation of 18 U.S.C. § 2113(a). Delgado argues
that the district court erroneously concluded that he qualified as a career offender
under U.S.S.G. § 4B1.1 because the documents that identified his predicate
convictions were unreliable. After a thorough review of the record, we affirm.
Delgado pleaded guilty without a written plea agreement to one count of
bank robbery. The probation officer prepared a presentence investigation report
(PSI), which identified Delgado as a career offender under U.S.S.G. § 4B1.1(a)
based on his 2001 and 2002 robbery convictions in Puerto Rico. As a career
offender, Delgado’s advisory guideline range was 151 to 188 months’
imprisonment.
At sentencing, Delgado argued that he did not have two predicate offenses
for career-offender status because the 2001 and 2002 convictions had been
consolidated when he was resentenced in both cases. The government submitted
certified copies of the convictions from Puerto Rico. These documents indicated
that Delgado had been convicted and sentenced on multiple charges in 2001 and
convicted and sentenced on multiple charges in 2002. The sentences were
consolidated and term of imprisonment was reduced in a single judgment in 2003.
The parties and the court agreed that these documents were confusing, but the
government argued that although there were “some procedural irregularities,”
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there were two separate convictions. According to the government, the fact that
the sentences were later consolidated and reduced did not consolidate them for
career-offender purposes.
The court found that the 2001 and 2002 convictions were separate predicate
offenses and thus Delgado qualified as a career offender. Nevertheless,
considering the sentencing factors under 18 U.S.C. § 3553(a), the court varied
downward and sentenced Delgado to 120 months’ imprisonment. Delgado now
appeals, arguing that the certified copies of his convictions in Puerto Rico were
unreliable and thus that the court erred in finding he was a career offender.1
Ordinarily, “[w]e review de novo a district court’s decision to classify a
defendant as a career offender.” United States v. Shannon, 631 F.3d 1187, 1188
n.1 (11th Cir. 2011). But we review objections or arguments not raised in the
district court only for plain error.2 See United States v. Evans, 478 F.3d 1332,
1338 (11th Cir. 2007). Under plain error review, we reverse only if there is
1
Delgado does not argue that he did not commit the robberies. Nor does he dispute that
the crime of robbery is a predicate offense.
2
At sentencing, Delgado challenged his classification as a career offender on the ground
that there was only one conviction because the two cases were consolidated for resentencing.
Because he objected before the district court based on a different legal theory than the one raised
on appeal, we conclude that he failed to preserve the issue he now raises. United States v.
Massey, 443 F.3d 814, 819 (11th Cir. 2006).
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(1) error, (2) that is plain, and (3) that affects the defendant’s substantial rights.
Id. If these three factors exist, we will exercise our discretion to correct the error
only if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.Under U.S.S.G. § 4B1.1(a),
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance offense;
and (3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
Id. As the guidelines explain, robbery is a “crime of violence.” U.S.S.G. § 4B1.2,
comment. (n.1). And Delgado was at least eighteen years old at the time he
committed this bank robbery. Thus, the only issue before us is whether there was
sufficient proof that Delgado had two prior convictions for crimes of violence.
The government must prove the facts relevant to sentencing determinations
by a preponderance of the evidence. United States v. Gay, 251 F.3d 950, 953
(11th Cir. 2001). “[T]he court may consider relevant information without regard
to its admissibility under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its probable accuracy.”
United States v. Docampo, 573 F.3d 1091, 1098 (11th Cir. 2009) (quoting
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U.S.S.G. § 6A1.3(a)). In general, to establish prior convictions, “the best
approach” is to produce a certified copy of the conviction. United States v.
Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999).
Because Delgado failed to challenge the reliability of the documents before
the district court, we review Delgado’s argument for plain error. After reviewing
the record, we conclude that the documents had sufficient indicia of reliability to
support their probable accuracy. See Docampo, 573 F.3d at 1098. The
government supplied certified copies of the convictions along with English
translations. Wilson, 183 F.3d at 1301. These documents were sufficient to
establish that Delgado had two prior convictions and that he qualified as a career
offender. Accordingly, there was no error, and we affirm Delgado’s sentence.
AFFIRMED.
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