Case: 12-16338 Date Filed: 01/21/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16338
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-20234-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMAURY VILLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 21, 2015)
Before TJOFLAT, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Amaury Villa appeals his 140-month sentence after pleading guilty to one
count of conspiracy to sell stolen goods in violation of 18 U.S.C. § 371 and one
Case: 12-16338 Date Filed: 01/21/2015 Page: 2 of 4
count of possession of stolen goods in violation of 18 U.S.C § 2315. He raises two
arguments, both for the first time, on appeal. First, he argues that the district court
improperly relied on conclusory statements in his presentence investigation report
in attributing a loss of $80,000,000 to him for the purposes of his guidelines
calculation. Second, he argues that the district court’s decision to impose
consecutive sentences was based on an incorrect reading of his criminal history.
After careful consideration, we reject both of these arguments and affirm.
We review issues raised for the first time on appeal for plain error only.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). We cannot
correct an error that the defendant failed to raise before the district court unless
there is “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id.
(quotation omitted). If all three conditions are met, we may then exercise our
discretion to notice a forfeited error, but only if “the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
omitted). Error is plain when it is clear under current law. United States v. Olano,
507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993).
A defendant’s offense level for property crimes may be increased based on
the amount of the loss of the stolen property involved in the offense. United States
Sentencing Guidelines § 2B1.1. Because loss is often not calculable with
precision, we require that the district court make only a “reasonable estimate” of
2
Case: 12-16338 Date Filed: 01/21/2015 Page: 3 of 4
the loss amount. United States v. Medina, 485 F.3d 1291, 1304 (11th Cir. 2007).
When a defendant challenges the loss amount provided in his PSI, the government
bears the burden of establishing the loss by a preponderance of the evidence, and
the district court must make factual findings sufficient to support the attributed
amount. United States v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2001). However,
when a defendant does not object, a court may properly rely on undisputed
statements of loss in the PSI, even when those statements are conclusory. United
States v. Hedges, 175 F.3d 1312, 1315 (11th Cir. 1999).
Villa’s PSI stated that he was responsible for approximately $80,000,000
worth of pharmaceuticals stolen from an Eli Lilly warehouse and recovered from
five different storage units under his control. Villa raised no objection to the loss
amount at sentencing, and therefore the district court did not plainly err by relying
on the undisputed statement of loss in the PSI. See United States v. Beckles, 565
F.3d 832, 844 (11th Cir. 2009) (“Indeed, the defendant’s failure to object to
conclusory statements in the PSI renders those statements undisputed and permits
the sentencing court to rely upon them without error even if there is an absence of
supporting evidence.”).
Neither did the district court plainly err in imposing consecutive sentences.
When a defendant is convicted on multiple counts, and the advisory guidelines
range is higher than the statutory maximum for any of the counts individually, the
3
Case: 12-16338 Date Filed: 01/21/2015 Page: 4 of 4
Sentencing Guidelines advise the court to impose consecutive sentences to the
extent required to reach the guidelines sentence. USSG § 5G1.2(d). Here, the
district court calculated an advisory guidelines range of 140 to 175 months based
in part on its finding that Villa’s criminal history category was V. Because the
advisory guidelines range was higher than the statutory maximum for either of the
counts to which he pleaded guilty, the district court properly imposed sentences of
60 and 80 months to run consecutively. Beyond that, contrary to Villa’s argument
here, the district court did not rely on clearly erroneous information in calculating
his criminal history category because his PSI reflects prior convictions resulting in
10 criminal history points pursuant to USSG § 4A1.1.
For these reasons, we find no reversible error and affirm.
AFFIRMED.
4