United States v. Armando Lorenzo

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 11, 2005
No. 04-14777 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20092-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ARMANDO LORENZO,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 11, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
The United States appeals Armando Lorenzo’s eight-month sentence
imposed after Lorenzo pleaded guilty to possession of Device-Making Equipment
with the intent to defraud, in violation of 18 U.S.C. § 1029(a)(4). The government
argues that in light of United States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005),
the district court committed reversible error in applying the Sentencing Guidelines
as mandatory. The government further contends that the district court failed to
correctly calculate the advisory guidelines range by not applying an enhancement
based upon a loss amount found by the district court but not charged in the
indictment or admitted to by the defendant.
The government properly preserved its Booker error claim by raising an
objection to the district court’s application of Blakely at sentencing. See United
States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (holding that appellant
properly preserved Booker error claim by citing Blakely in his written objection to
the presentence investigation report and reminding the court at sentencing of his
Blakely objection).
“We review questions of law arising under the Sentencing Guidelines de
novo.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005).
Deciding whether a factor is a permissible grounds on which to upwardly or
downwardly depart from the Sentencing Guidelines is a question of law. See
United States v. Kim, 364 F.3d 1235, 1239-40 (11th Cir. 2004).
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Booker does not alter our review of the application of the Guidelines.
Crawford, 407 F.3d at 1178. The Supreme Court concluded in Booker that the
district court must still consider the Sentencing Guidelines in correctly determining
a defendant’s sentence. Booker, 125 S. Ct. at 765. Further, district courts, post-
Booker, have the obligation to correctly calculate the Guidelines range. “After [the
district court] has made this calculation, [and considers other factors as set forth in
18 U.S.C. § 3553, it] may impose a more severe or more lenient sentence as long
as the sentence is reasonable.” Crawford, 407 F.3d at 1178, citing Booker 125 S.
Ct. at 767.
In the instant case, the district court indicated its desire to factor the amount
of loss into the determination of the appropriate Guidelines range and thus
sentence Lorenzo within a higher range. However, the district court did not use
this factor to enhance Lorenzo’s sentence because the district court considered it
prohibited under Blakely. Crawford indicates that the district court was able to and
should have taken into consideration the loss amount that resulted from Lorenzo’s
criminal acts in correctly calculating Lorenzo’s sentence. Crawford, 407 F.3d at
1178.
Determining the correct Sentencing Guideline range remains a crucial
obligation of the district court post-Booker. In this case, the district court failed to
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consider the correct Guidelines range in determining Lorenzo’s sentence. The
error was not harmless because the court’s comments make it clear that had it
considered the correct sentencing range, the sentence would have been higher.
Accordingly, we vacate Lorenzo’s sentence and remand the case to the district
court for resentencing.
SENTENCE VACATED AND REMANDED
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