United States v. Roberto Delgado

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 3, 2007
No. 06-14458 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-80193-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO DELGADO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 3, 2007)
Before ANDERSON and PRYOR, Circuit Judges, and ALBRITTON,* District
Judge.
PER CURIAM:
*
Honorable W. Harold Albritton, III, United States District Judge for the Middle District
of Alabama, sitting by designation.
Roberto Delgado appeals his convictions and sentence of 360 months of
imprisonment for possession of a firearm and ammunition by a convicted felon,
possession with intent to distribute cocaine, and carrying a firearm during and in
relation to a drug trafficking crime. 18 U.S.C. §§ 922(g)(1) & 924(c)(1)(A)(I); 21
U.S.C. § 841(a)(1). Delgado argues that (1) there was no probable cause to support
the traffic stop that led to his arrest and the search of his vehicle; (2) there is
insufficient evidence to support his conviction for carrying a firearm “during and
in relation to” a drug trafficking crime; and (3) the court should have instructed the
jury on the lesser included offense of simple possession of cocaine. Delgado also
argues that the district court erred when it denied him a reduction for acceptance of
responsibility, see United States Sentencing Guidelines § 3E1.1 (Nov. 2005),
erroneously classified him as a career offender, see id. § 4A1.2, and imposed an
unreasonable sentence. We discuss each argument in turn and affirm the
convictions and sentence.
The arresting officer had probable cause to stop Delgado’s car because he
had reason to believe at least two traffic violations—illegal window tinting and
unilluminated license tag—had occurred. Whren v. United States, 517 U.S. 806,
810, 116 S. Ct. 1769, 1772 (1996). Because probable cause existed to stop the
vehicle, the officer lawfully ordered Delgado out of the car, confiscated the firearm
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Delgado carried in plain view, investigated Delgado’s driver’s license, and
performed a protective search of both driver and vehicle. Ohio v. Robinette, 519
U.S. 38–39, 117 S. Ct. 417 (1996); United States v. Purcell, 236 F.3d 1274,
1277–78 (2001). The district court did not err when it denied Delgado’s motion to
suppress.
Delgado’s argument that there is insufficient evidence to support his
convictions for carrying a firearm “during and in relation to” a drug trafficking
crime also fails. We review de novo the sufficiency of the evidence supporting a
criminal conviction and view the evidence in the light most favorable to the
government. United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). The
evidence suggested that the firearm at least had “the potential of facilitating” the
drug trafficking offense because it was loaded, close to the cocaine, and readily
accessible to Delgado. United States v. Timmons, 283 F.3d 1246, 1251 (11th Cir.
2002).
Delgado argues for the first time in his reply brief that the district court
erroneously denied his request for a jury instruction on the lesser included offense
of simple possession of cocaine. “Under the law of this Circuit, an issue not raised
in a party’s initial appellate brief is considered waived, and the party is prohibited
from raising the issue later in the appeal.” United States v. Silvestri, 409 F.3d
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1311, 1338 n.18 (11th Cir. 2005). As a result, Delgado waived this argument.
Delgado’s arguments about sentencing also fail. We review the district
court’s interpretation of the Sentencing Guidelines de novo and its factual findings
for clear error, United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005), and
we review a sentence for reasonableness. United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005). First, the district court did not clearly err when it determined
that Delgado was not entitled to a reduction for acceptance of responsibility
because Delgado put the government to its burden of proof both before and during
trial. U.S.S.G. § 3E1.1 cmt. n.2; see also United States v. Smith, 127 F.3d 987,
989 (1997) (en banc).
Second, the district court was correct to classify Delgado as a career
offender. According to section 4A1.2 of the Guidelines, “[p]rior sentences
imposed in unrelated cases are to be counted separately.” U.S.S.G. § 4A1.2. The
Guidelines Commentary states: “Prior sentences are not considered related if they
were for offenses that were separated by an intervening arrest . . . .” U.S.S.G. §
4A1.2 cmt. n.3. Delgado was arrested for the first offense in January 1995 before
he committed the second offense in April 1995, so the second offense was an
intervening arrest. United States v. Hunter, 323 F.3d 1314, 1322–23 (11th Cir.
2003). The district court was correct to conclude that the two prior sentences were
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unrelated and sentenced Delgado as a career offender.
Third, Delgado’s sentence of 360 months of imprisonment was reasonable.
The district court considered permissible sentencing factors, stated its reasons for
the particular sentence on the record, and sentenced Delgado at the low end of the
Guidelines range. See Williams, 456 F.3d 1353, 1361 (11th Cir. 2006); Talley,
431 F.3d at 787–88. Delgado cannot establish that his sentence fails to further the
sentencing purposes of section 3553(a).
Delgado’s convictions and sentence, therefore, are
AFFIRMED.
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