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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10075
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00159-PGB-DAB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PABLO OLGUIN-ZARATE,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 31, 2015)
Before HULL, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Pablo Olguin-Zarate appeals his 60 month sentence, the result of a
downward variance, which the district court imposed after he pled guilty to one
count of illegal reentry into the United States after having been convicted of an
aggravated felony. For the reasons set forth below, we affirm.
I.
After Mr. Olguin-Zarate pled guilty, the probation office prepared a
presentence investigation report (“PSI”), which set a base offense level of eight
under U.S.S.G. § 2L1.2(a). The PSI applied a 16 level enhancement, pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii), because Mr. Olguin-Zarate had been convicted in
1999 of lewd or lascivious exhibition, in violation of Fla. Stat. § 800.04(7)(a), a
crime of violence under the Sentencing Guidelines. According to the PSI, Mr.
Olguin-Zarate stopped his car near two minors and asked them a question while
fondling his exposed penis. He repeated the conduct approximately 30 minutes
later and, about a month thereafter, he returned to the same location and drove
slowly past one of the original victims, again exposing himself. The victim
identified him to police, and he was arrested and convicted. The PSI also applied a
three level reduction for acceptance of responsibility, bringing Mr. Olguin-Zarate’s
total offense level to 21. With a criminal history category of V, the PSI calculated
a guidelines range of 70 to 87 months’ imprisonment.
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Mr. Olguin-Zarate objected to the 16 level enhancement, arguing that his
1999 conviction was not a “crime of violence” within the meaning of U.S.S.G.
§ 2L1.2. He conceded that this Court held in United States v. Padilla-Reyes, 247
F.3d 1158, 1163-64 (11th Cir. 2001), that a violation of Fla. Stat. § 800.04
qualified for “sexual abuse of a minor” and therefore categorically was a violent
felony under U.S.S.G. § 2L1.2. But he argued that Padilla-Reyes’s holding did not
apply here because that case involved a conviction for an actual assault and his did
not. The district court overruled the objection and adopted the PSI’s calculations
but varied downward and sentenced Mr. Olguin-Zarate to 60 months’
imprisonment.
This is Mr. Olguin-Zarate’s appeal.
II.
Mr. Olguin-Zarate raises four issues on appeal. Two, he concedes, squarely
are foreclosed by circuit precedent.1 Because we are bound to follow that
precedent unless and until it is overruled or undermined to the point of abrogation
by this Court sitting en banc or by the Supreme Court, we acknowledge that he has
1
Mr. Olguin-Zarate contends that the definition of “sexual abuse of a minor” adopted by
this Court in Padilla-Reyes is overbroad, but that case “remains binding precedent.” United
States v. Cortes-Salazar, 682 F.3d 953, 955-56 (11th Cir. 2012). He also argues that the district
court violated his Fifth and Sixth Amendment rights by using his prior conviction, which was
neither charged in the indictment nor proven to a jury, to increase the statutory maximum penalty
he faced. But the Supreme Court has held that the fact of a prior conviction need not be charged
in the indictment nor found by a jury. See Almendarez-Torres v. United States, 523 U.S. 224,
226 (1998).
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preserved the challenges but do not address them further. See United States v.
Brown, 342 F.3d 1245, 1246 (11th Cir. 2003); see also United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008) (noting that, although a decision of the
Supreme Court may overrule or abrogate prior panel precedent, such a decision
“must be clearly on point” (internal quotation marks omitted)). We address here
Mr. Olguin-Zarate’s two challenges that are not foreclosed by our precedent.
First, he argues that the district court erred in applying a 16 level
enhancement based on his 1999 conviction under Fla. Stat. § 800.04(7)(a), which
criminalizes intentionally masturbating or “expos[ing] the genitals in a lewd or
lascivious manner” in the presence of a victim who is less than sixteen years of
age.2 Because he preserved his challenge by advancing it below, we review this
claim de novo. See United States v. Harris, 586 F.3d 1283, 1284 (11th Cir. 2009).
The guidelines impose this enhancement if the defendant “was deported, or
unlawfully remained in the United States, after . . . a conviction for a felony that is
. . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The guidelines define
“crime of violence” to include, among other offenses, “sexual abuse of a minor.”
Id. comment. (n.1(b)(iii)). In Padilla-Reyes, we held that a conviction under Fla.
Stat. § 800.04 as codified in 1987 constituted “sexual abuse of a minor” under
U.S.S.G. § 2L1.2 even though the Florida statute encompassed acts involving no
2
The version of Fla. Stat. § 800.04(7)(a) in place at the time Mr. Olguin-Zarate was
convicted is identical to the subsection now in effect.
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physical contact with the victim. 247 F.3d at 1162-64 & n.4. 3 This holding was
not, as Mr. Olguin-Zarate contends, bound to the fact that a different subsection of
Fla. Stat. § 800.04 may have been implicated. 4 Rather, “[w]e recognized [in
Padilla-Reyes] that violations of § 800.04 might not involve any physical contact
with the victim, but concluded that all possible violations involve the misuse or
maltreatment of a child for sexual gratification, and, thus, constitute ‘sexual abuse
of a minor.’” United States v. Cortes-Salazar, 682 F.3d 953, 955 (11th Cir. 2012)
(emphasis added) (internal citation omitted).
We also reject Mr. Olguin-Zarate’s assertion that the holding of Padilla-
Reyes must be revisited in light of the Supreme Court’s decision in Descamps v.
United States, 133 S. Ct. 2276 (2013). In Descamps, the Supreme Court concluded
that, when every possible offense under a statute does not match the generic
definition of a qualifying violent felony offense, the sentencing court must
determine whether the statute is divisible or not and, if not, must conclude that the
offense does not qualify as a crime of violence. Id. at 2281-82. Here, because “all
3
We noted in United States v. Cortes-Salazar that, although the amended version of Fla.
Stat. § 800.04 “differ[s] slightly from the version discussed in Padilla-Reyes, the elements of
[the] offense [are] identical to the elements of the offense in 1987.” 682 F.3d at 955.
4
We did not specify the subsection under which Mr. Padilla-Reyes was convicted, but
Mr. Olguin-Zarate suggests that the conviction was for “lewd assault,” rather than exhibition,
citing some language in Padilla-Reyes using the term “assault.” We are unconvinced by this
reading of our precedent. The version of the statute under which Mr. Padilla-Reyes was
convicted merely included the word “assault” in its introductory heading. See Fla. Stat. § 800.04
(1987) (“Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual
battery”). As we emphasized in Cortes-Salazar, the 1987 statute is identical in meaning to the
one under which Mr. Olguin-Zarate was convicted. See supra n.3.
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possible violations” of Fla. Stat. § 800.04 qualify as sexual abuse of a minor, the
divisibility analysis of Descamps is not implicated, and our holding in Padilla-
Reyes remains intact. Cortes-Salazar, 682 F.3d at 955. Accordingly, we affirm
the district court’s imposition of the 16 level enhancement under U.S.S.G. § 2L1.2.
Second, Mr. Olguin-Zarate contends that using his prior conviction to
increase both his criminal history category and his offense level violated the
Double Jeopardy Clause and constituted impermissible double counting. He failed
to make this argument to the district court, so we review only for plain error. See
United States v. Mozie, 752 F.3d 1271, 1290 (11th Cir.), cert. denied, 135 S. Ct.
422 (2014). We therefore may reverse on this ground only if we find (1) error (2)
that is plain and (3) affected the defendant’s substantial rights, and then only if (4)
the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014),
cert. denied, 135 S. Ct. 948 (2015).
We find no error, plain or otherwise, in the district court’s use of Mr.
Olguin-Zarate’s previous conviction to determine both his total offense level and
his criminal history category. In the sentencing context, the Double Jeopardy
Clause “does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.” Garrett v. United States, 471 U.S. 773,
793 (1985). Similarly, “double counting” a conviction in the manner the district
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court did here is permissible if the U.S. Sentencing Commission intended such a
result. United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992). “The
Commission clearly intended prior felonies to count against defendants both under
the criminal history section and [U.S.S.G.] § 2L1.2.” Id. Indeed, commentary to
that guideline indicates that “[a] conviction taken into account under subsection
(b)(1) is not excluded from consideration of whether that conviction receives
criminal history points.” U.S.S.G. § 2L1.2 comment. (n(6)). “[A]nd this result is
permissible” because “[t]he criminal history section is designed to punish likely
recidivists more severely, while the enhancement under § 2L1.2 is designed to
deter aliens who have been convicted of a felony from re-entering the United
States.” Adeleke, 968 F.2d at 1161. Because the district court’s counting did not
result in a greater punishment than the Sentencing Commission intended, the
calculation did not violate the Double Jeopardy Clause or constitute impermissible
double counting.
III.
For the reasons set forth above, we affirm Mr. Olguin-Zarate’s sentence.
AFFIRMED.
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