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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17389
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00016-VMC-JSS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT BAEZ,
a.k.a. Roberto Baez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 28, 2017)
Before HULL, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
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After pleading guilty, Robert Baez appeals his convictions and total 84
month sentence for two counts of possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Baez argues:
(1) § 922(g) is unconstitutional, facially and as applied to him, and that his plea
colloquy was constitutionally deficient, both of which render his convictions
invalid; (2) the district court erred in applying an increased base offense level
because his two prior convictions for resisting an officer with violence do not
constitute crimes of violence under the Sentencing Guidelines; and (3) the district
court imposed a sentence that was both procedurally and substantively
unreasonable. After review, we affirm.
I. BAEZ’S § 922(g) CONVICTIONS
A. Offense Conduct
On July 29, 2014, an agent from the Bureau of Alcohol, Tobacco, Firearms,
and Explosives learned from a confidential source that Baez, a convicted felon, had
previously made arrangements to sell firearms from the trunk of his car. The agent
arranged a meeting with Baez to purchase two firearms furnished by Baez’s
associate, Michael Sparacino.
A few days later, on August 1, the confidential source and an undercover
officer met with Baez and Sparacino at a parking lot in St. Petersburg, Florida and
purchased two firearms from Sparacino. Baez then placed the firearms in the
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undercover officer’s car, and the undercover officer and Sparacino discussed the
purchase of additional firearms to take place the following week.
On August 6, 2014, Baez called the undercover officer several times, stating
that he and Sparacino had more firearms for sale. Baez also texted the undercover
officer a photograph of himself holding a pistol grip shotgun. The undercover
officer agreed to meet with Baez and Sparacino at a pawn shop in Seminole,
Florida that was owned by Sparacino.
Later that day, the undercover officer met with Baez and Sparacino at the
pawn shop. As Baez and Sparacino took three firearms out of a box behind the
counter, Baez handled and possessed the firearms. The undercover officer
purchased all three firearms.
It is undisputed that Baez did not receive any payment from the firearm
sales, and Baez maintained that he was merely helping his friend, Sparacino. It is
also undisputed that four of the five firearms sold to the undercover officer were
manufactured outside of Florida.
Baez was charged in an indictment with two counts of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Count One charged Baez’s possession of two firearms during the August 1, 2014
firearms sale, and Count Two charged Baez’s possession of two firearms during
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the August 6, 2014 firearms sale. Baez pled guilty to both counts without a written
plea agreement.
B. Baez’s Challenges on Appeal
As to his convictions, Baez argues that § 922(g) is facially unconstitutional
because it exceeds Congress’s authority under the Commerce Clause and that
§ 922(g) is unconstitutional as applied to him because the fact that the firearms he
possessed in Florida were manufactured outside Florida is insufficient to satisfy the
interstate commerce jurisdictional requirement.
Both of Baez’s constitutional challenges to § 922(g) are foreclosed by this
Court’s prior precedent expressly rejecting such challenges. See United States v.
Wright, 607 F.3d 708, 715 (11th Cir. 2010). In Wright, this Court rejected the
defendant’s facial challenge, citing prior cases holding that § 922(g) is not an
unconstitutional exercise of Congress’s power under the Commerce Clause. Id.
(citing United States v. Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997) and United
States v. McAllister, 77 F.3d 387, 389 (11th Cir. 1996)).
The Wright Court also rejected the defendant’s as-applied challenge,
concluding that the fact that the firearms at issue were manufactured outside of
Florida and then were discovered in the defendant’s possession in Florida meant
that they necessarily traveled in interstate commerce, which was sufficient to
satisfy the constitutional requirement of a “minimal nexus” to interstate commerce.
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Id. at 715-16. We are bound by these precedents, which have not been overruled
by this Court sitting en banc or by the Supreme Court. See United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
Here, Baez has never disputed that the four firearms he pled guilty to
possessing were manufactured outside the state of Florida. Further, because
“§ 922(g) only requires that the government prove some ‘minimal nexus’ to
interstate commerce,” Wright, 607 F.3d at 715, there is no merit to Baez’s claim
that the district court improperly advised him of the elements of a § 922(g) offense
during his plea colloquy. Accordingly, § 922(g) is constitutional both facially and
as applied to Baez’s conduct, and Baez’s guilty plea is valid.
II. BAEZ’S SENTENCE
A. Base Offense Level Under U.S.S.G. § 2K2.1
Under U.S.S.G. § 2K2.1(a)(2), a defendant’s base offense level is 24 if the
defendant committed the instant offense after sustaining at least two felony
convictions for crimes of violence. A “crime of violence” for § 2K2.1 purposes is
defined in § 4B1.2(a), the career offender provision, and includes “any offense
under federal or state law, punishable by imprisonment for a term exceeding one
year that . . . has as an element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. §§ 2K2.1, cmt. n. 1, 4B1.2(a)(1).
This definition, referred to as the elements clause, is identical to the elements
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clause definition of “crime of violence” in U.S.S.G. § 2L1.2 and the elements
clause definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B)(i). For that reason, cases addressing the ACCA are applicable to
and instructive in cases addressing the elements clauses of the Sentencing
Guidelines. United States v. Romo-Villalobos, 674 F.3d 1246, 1248 (11th Cir.
2012).
At sentencing, the district court, over Baez’s objection, set Baez’s base
offense level at 24, pursuant to U.S.S.G. § 2K2.1(a)(2), based on Baez’s two
separate Florida felony convictions for resisting an officer with violence in 2006.
A person commits the Florida felony offense of resisting an officer with violence if
he “knowingly and willfully resists, obstructs, or opposes any officer . . . in the
lawful execution of any legal duty, by offering or doing violence to the person of
such officer . . . .” Fla. Stat. § 843.01.
It is well-settled in this Court that, applying the categorical approach, Florida
Statutes § 843.01 has as an element the use, attempted use, or threatened use of
physical force against the person of another. See Romo-Villalobos, 674 F.3d at
1249, 1251 (concluding that because “violence is a necessary element,” a § 843.01
offense constitutes a crime of violence under U.S.S.G. § 2L1.2’s identical elements
clause). This Court reaffirmed that conclusion in United States v. Hill, which held
that the district court erred in finding that a prior Florida conviction for resisting an
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officer with violence did not constitute a violent felony under the ACCA. Hill, 799
F.3d 1318, 1322-23 (11th Cir. 2015).
Baez cites Moncrieffe v. Holder, 569 U.S. 184, 133 S. Ct. 1678 (2013), and
Descamps v. United States, 570 U.S. 254, 133 S Ct. 2276 (2013), and argues that
after these Supreme Court decisions, his Florida resisting an officer with violence
conviction does not categorically qualify as a crime of violence. But, neither
Moncrieffe nor Descamps addressed whether a Florida conviction under § 843.01
is a crime of violence, much less overruled this Court’s decision in Romo-
Villalobos. See Moncrieffe, 570 U.S. at 190-96, 133 S. Ct. at 1684-88 (addressing
whether a Georgia marijuana possession conviction qualified as “illicit trafficking
in a controlled substance” under the Immigration and Nationality Act); Descamps,
570 U.S. at ___, 133 S. Ct. at 2282-83 (addressing whether a California burglary
conviction qualified as generic burglary under the ACCA’s enumerated offenses
clause). Perhaps more importantly, this Court decided Hill after Moncrieffe and
Descamps, which puts paid to Baez’s claim that the proper application of the
categorical approach would lead to a different result. Thus, Baez’s argument that
his Florida convictions under § 843.01 do not qualify as crimes of violence under
§ 4B1.2(a)’s elements clause is foreclosed by this Court’s binding precedent in
Villalobos and Hill. See Archer, 531 F.3d at 1352.
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B. Reasonableness Principles
We review the reasonableness of a sentence for an abuse of discretion using
a two-step process. United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014).
First, we consider whether the district court committed any significant procedural
error, such as miscalculating the advisory guidelines range, treating the Sentencing
Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors,
choosing a sentence based on clearly erroneous facts, or failing to adequately
explain the sentence imposed. Id.
Second, we examine whether the sentence is substantively unreasonable in
light of the § 3553(a) factors and the totality of the circumstances. 1 Id. The party
challenging the sentence bears the burden to show it is unreasonable. United
States v. Alvarado, 808 F.3d 474, 496 (11th Cir. 2015). The weight given to any
particular § 3553(a) factor is within the district court’s discretion, and this Court
will not substitute its judgment for that of the district court. Id. We will reverse a
sentence only if we are “left with the definite and firm conviction that the district
court committed a clear error of judgment in weighing the § 3553(a) factors by
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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arriving at a sentence that lies outside the range of reasonable sentences dictated by
the facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)
(quotation marks omitted).
C. Procedural Reasonableness of Baez’s Sentence
The district court did not impose a procedurally unreasonable sentence.
Baez argues that the district court procedurally erred by giving no weight to the
testimony of Dr. Valarie McClain, a psychologist who conducted a forensic
psychological evaluation of Baez. Dr. McClain testified, among other things, that
Baez had been physically abused as a child, had cognitive deficits due to a
childhood head injury, had a full-scale IQ score of 69, and was diagnosed with
schizoaffective disorder, bipolar type, intellectual development disorder, and
neurocognitive disorder. Dr. McClain said that around the time of his offenses,
Baez was not stabilized on medication and was self-medicating with alcohol.
Dr. McClain opined that, as a result, Baez suffered from reduced mental capacity
at the time of his offenses and could not appreciate the wrongfulness of his conduct
or conform his behavior to the requirements of the law.
The record contradicts Baez’s claim that the district court gave no weight to
Dr. McClain’s opinions. The district court expressly acknowledged Dr. McClain’s
testimony, stating that it “listened very intently to what the psychologist had to
say” and commenting that “[s]he gave some very compelling testimony.” The
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district court also noted that Baez needed continuing mental health treatment and
recommended a facility in which the district court believed Baez would receive
such treatment. These statements reflect the district court’s consideration of Dr.
McClain’s testimony and Baez’s history of mental health issues.
Baez also argues that the district court procedurally erred by expressly
agreeing with the government’s argument for a sentence at the low end of the
guidelines, which Baez says contained “material incorrect information.”
Specifically, Baez claims the prosecutor misstated that: (1) Baez sold cocaine after
possessing the firearms for which he was charged; and (2) treatment and
medication did not deter Baez’s criminal conduct.
First, even assuming that these two statements by the prosecutor were
incorrect, Baez had the opportunity to address them during the sentencing hearing.
At least with regard to the prosecutor’s second statement, Baez did in fact do so,
arguing that he committed crimes only when he was not in treatment, and that it
was not a matter of him choosing not to take medication that he had, but rather of
him not having medication at all because he was not being treated. Further, the
district court had the presentence investigation report (“PSI”), which showed the
dates of Baez’s criminal offenses and convictions as well as dates of treatment, and
listened to Dr. McClain’s testimony regarding the relationship between Baez’s
treatment and offenses.
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Second, we disagree with Baez that the district court relied on or adopted the
prosecutor’s factual statements in his argument. Rather, the district court heard
extensive arguments from both parties as to the appropriate sentence based on
various aggravating and mitigating factors, including Baez’s significant criminal
history, his history of mental illness and substance abuse, his amenability to mental
health treatment and whether treatment was effective in deterring him from
engaging in criminal activity, the seriousness of Baez’s offense, which involved
two separate firearms sales, Baez’s role in arranging and facilitating the firearm
sales for a friend who owned a pawn shop, and Baez’s own fleeting possession of
the firearms during the firearm transactions. The government asked for an 84-
month sentence, at the low end of the advisory guidelines range, while Baez asked
for a downward variance to a 23-month sentence.
After hearing arguments from both parties, the district court imposed an 84-
month sentence, at the low end of the advisory range. In explaining its decision to
deny Baez a downward variance, the district court stated that it agreed with the
government’s assessment, as follows:
In essence, I agree with the government here. I think the
challenges [Baez has] had to deal with warrant a sentence at the low
end of the guidelines, but it does not warrant a downward variance.
He himself stopped taking his medication in the past, and I think
that’s contributed to some of his problems. I also look at protecting
the public; and given his criminal history here, that’s very important
to me.
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I’ve certainly listened very intently to what the psychologist
had to say. She gave some very compelling testimony. And,
likewise, [defense counsel], you’ve given very compelling arguments
on behalf of your client, but I just don’t see it the way you do. That’s
just the bottom line. I don’t see it the way you do, and I most
respectfully disagree with your assessment of it and I agree with the
government. That’s the bottom line.
We read the district court’s explanation to say that it agreed with the government’s
overall assessment that a downward variance was not appropriate given Baez’s
criminal history and the need to protect the public, not that the district court agreed
with every factual assertion made by the prosecutor in arguing for an 84-month
sentence.
To the extent Baez contends that the district court relied on a clearly
erroneous fact—that Baez “stopped taking his medication in the past” and that
Baez’s not taking his medication contributed to his problems—there is ample
record support for this fact finding by the district court. Specifically, at Baez’s
request, the probation officer added to the PSI that Baez advised the probation
officer that he was “not taking his psychiatric medications” at the time of his two
resisting an officer with violence offenses. Dr. McClain testified that because
Baez was not on his medications at the time of those offenses, he was not able to
behave appropriately. Dr. McClain further opined that when Baez was not on
medication and was self-medicating with alcohol, he posed a higher risk of danger
to the community, but that when he was properly medicated, he was a different
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person and that medication dramatically decreased the risk that Baez would be
involved in criminal activity or engage in violent or aggressive behavior.
In addition, the PSI stated that during at least one hospitalization in June 2015,
Baez refused to take his prescribed medication. Baez did not object to this fact in
the PSI or dispute the PSI’s factual accuracy at sentencing. In light of these
undisputed facts, Baez has not shown that the district court relied on a clearly
erroneous fact.
D. Substantive Reasonableness of Baez’s Sentence
Likewise, Baez has not shown that his sentence is substantively
unreasonable. Baez’s 84-month sentence is at the low end of the advisory
guidelines range of 84 to 105 months’ imprisonment, which is one indication of its
reasonableness. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
While Baez has had serious mental health problems, the district court acted
within its sound discretion in placing greater weight on the need to protect the
public in light of Baez’s criminal history. See United States v. Clay, 483 F.3d 739,
743 (11th Cir. 2007). Despite repeated periods of mental health treatment and
hospitalization and 16-month inpatient substance abuse treatment, Baez has
managed to accrue an extensive criminal history, with 10 adult convictions over a
sixteen-year time span. Baez does not dispute that he committed crimes when he
was not being treated for his mental illness. Regardless of whether the lack of
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treatment was a result of Baez’s own choice or because of a lack of access,
Dr. McClain testified that, without proper treatment, Baez poses a danger to the
community. In short, Baez’s treatment history and criminal history show that
Baez, regardless of the reason, has found it difficult to maintain the kind of
stability through mental health treatment and abstaining from substance abuse that
would ensure the public’s safety.
To the extent that Baez argues that his 84-month sentence is substantively
unreasonable for the same reasons he contends it is procedurally unreasonable,
these arguments fail for the reasons discussed above. The district court did not fail
to afford consideration to a relevant factor—Baez’s mental health—because it
expressly considered that factor. The district court also did not err in giving
significant weight to an improper factor—the government’s alleged false
statements—because the government’s statements were not relied upon by the
district court as facts. Thus, the district court did not abuse its discretion by
ignoring a relevant factor or considering an improper factor.
The other reasons Baez argues his sentence is substantively unreasonable—
he had only “fleeting” possession of the firearms and had never been incarcerated
for more than one year—were also considered by the district court. The PSI
contained information regarding all of Baez’s previous sentences. Both parties
acknowledged that Baez’s brief possession of the firearms made his case atypical,
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but the fact that Baez had arranged the two sales was significant and also made his
possession more serious. The district court was permitted to give more weight to
the fact that Baez possessed the firearms on two different occasions and facilitated
their sales, and it is not our role to second guess that decision. See United States v.
Snipes, 611 F.3d 855, 872 (11th Cir. 2010).
Under the totality of the circumstances, we cannot say the district court
abused its discretion in denying Baez’s request for a downward variance.
AFFIRMED.
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