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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10543
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20724-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAZARO ABUIN-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 17, 2017)
Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Lazaro Abuin-Sanchez appeals his 188-month sentence, which was imposed
after he pleaded guilty to one count of bank robbery, under 18 U.S.C. § 2113(a).
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On appeal, Abuin-Sanchez argues that the court erred in sentencing him as a career
offender under the Sentencing Guidelines. He also argues that his sentence is
substantively unreasonable. We consider each of his arguments below. After
careful review, we affirm.
I.
We review de novo a district court’s determination of whether a defendant
qualifies as a career offender. United States v. Whitson, 597 F.3d 1218, 1220 (11th
Cir. 2010) (per curiam). Also, “[w]e review sentencing arguments raised for the
first time on appeal for plain error.” United States v. Bonilla, 579 F.3d 1233, 1238
(11th Cir. 2009). Unless “the explicit language of a statute or rule . . . resolve[s] an
issue, there can be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d
1288, 1291 (11th Cir. 2003) (per curiam). Finally, the prior precedent rule binds
us to our prior decisions unless and until they are overruled by the Supreme Court
or this court en banc. United States v. Brown, 342 F.3d 1245, 1246 (11th Cir.
2003).
Abuin-Sanchez asserts that the district court violated the Supreme Court’s
ruling in Johnson v. United States, 135 S. Ct. 2551 (2015), when it applied the
career offender enhancement in calculating his guideline range. He supports this
proposition by first arguing that his instant federal robbery conviction does not
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qualify as a crime of violence under U.S.S.G. § 4B1.2(a) because (1) it does not
satisfy the criteria of the elements clause and (2) the only other clause it could
satisfy is the residual clause, which is unconstitutional. Second, Abuin-Sanchez
argues that his 2004 and 2010 strong-arm robbery convictions, under Fla. Stat.
§ 812.13(1), fail to qualify as predicate convictions for the purposes of the
enhancement.
Abuin-Sanchez’s arguments are unavailing. The court did not err in
applying the career offender enhancement according to U.S.S.G § 4B1.1. Under
the guidelines, a defendant’s offense level may be increased if he is a deemed to be
a career offender. See U.S.S.G. § 4B1.1. 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. § 4B1.1(a). A crime of violence is an offense:
under federal or state law, punishable by imprisonment for a term
exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use
of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson, extortion, or the
use or unlawful possession of a firearm . . . .
Id. § 4B1.2(a).
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Under Florida law, a “robbery” refers to “the taking of money or other
property . . . from the person or custody of another, with intent to either
permanently or temporarily deprive the person or the owner of the money or other
property, when in the course of the taking there is the use of force, violence,
assault, or putting in fear.” Fla. Stat. § 812.13(1). We have held that Florida
robbery under Fla. Stat. § 812.13 was the equivalent of the generic form of robbery
and therefore it constituted a crime of violence. See United States v. Lockley, 632
F.3d 1238, 1242 (11th Cir. 2011).
As an initial matter, Abuin-Sanchez failed to preserve for appeal his
objection to the instant federal robbery conviction being designated as a crime of
violence, because the objection was not raised in “such clear and simple language
that the trial court may not misunderstand it.” United States v. Massey, 443 F.3d
814, 819 (11th Cir. 2006). In the district court, Abuin-Sanchez raised a general
claim that he should not have been sentenced as a career offender. But general
objections are insufficient. See United States v. Dennis, 786 F.2d 1029, 1042 (11th
Cir. 1986). Because Abuin-Sanchez failed to preserve his objection for appeal, we
are limited to plain error review. See Bonilla, 579 F.3d at 1238. And under plain
error review, Abuin-Sanchez cannot prevail because there is no binding authority
from this Court or the Supreme Court that states that a robbery conviction under 18
U.S.C. § 2113(a) is not a crime of violence. See Lejarde-Rada, 319 F.3d at 1291.
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As to Abuin-Sanchez’s 2004 and 2010 strong-arm robbery convictions under
Fla. Stat. § 812.13(1), the district court properly concluded, consistent with
Lockley, that those prior convictions were valid predicate offenses for purposes of
the career offender enhancement. See 632 F.3d at 1242–45. The court was bound
by that precedent and correctly applied the career offender enhancement. See
Brown, 342 F.3d at 1246.
II.
Abuin-Sanchez also argues that his high end of the guideline range sentence
is substantively unreasonable. Specifically, he asserts that his sentence is greater
than necessary to comply with the purposes of sentencing.
We review the substantive reasonableness of a sentence for abuse of
discretion, considering the totality of the circumstances. Gall v. United States,
552 U.S. 38, 51 (2007). “The party challenging the sentence bears the burden to
show it is unreasonable in light of the record and the [18 U.S.C.] § 3553(a)
factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
A district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in § 3553(a)(2), including the need
to “reflect the seriousness of the offense,” “promote respect for the law,” “provide
just punishment for the offense,” deter criminal conduct, and “protect the public”
from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a). In imposing
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its sentence, the district court must also consider “the nature and circumstances of
the offense,” “the history and characteristics of the defendant,” “the kinds of
sentences available,” and the applicable guideline range. Id.
A district court abuses its discretion only when the court “(1) fails to afford
consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (en banc). While there is no presumption that “a
sentence within the guideline range is reasonable, we ordinarily expect [such a
sentence] to be reasonable.” United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008) (internal quotation marks omitted). Also, a sentence well below the
statutory maximum penalty is another indicator of reasonableness. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam).
Abuin-Sanchez has not demonstrated that his sentence is substantively
unreasonable. The court properly weighed and considered the § 3553(a) factors,
such as Abuin-Sanchez’s criminal history, the need to impose a sentence that acts
as a deterrent and promotes respect for the law, the kinds of sentences available,
and the sentencing range. See 18 U.S.C. § 3553(a)(1)–(4). Furthermore, Abuin-
Sanchez’s 188-month sentence was not only within the guideline range but also
below the statutory maximum penalty of 240 months—two indicators of a
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reasonable sentence. See 18 U.S.C. § 2113(a); Hunt, 526 F.3d at 746; Gonzalez,
550 F.3d at 1324. The court did not improperly weigh the sentencing factors,
commit a clear error of judgment, or unjustly rely on one factor. Thus there is no
abuse of discretion. See Irey, 612 F.3d at 1189.
AFFIRMED.
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