United States v. Apolinar Gomez-Lopez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-14574 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 18, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-00041-CR-T-17EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

APOLINAR GOMEZ-LOPEZ,
a.k.a. Apolinar Lopez,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(April 18, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Apolinar Gomez-Lopez appeals his 46-month sentence, imposed after he

pled guilty to re-entry by a deported felon alien, in violation of 8 U.S.C. § 1326(a),
(b)(1). On appeal, Gomez-Lopez argues that the district court erred at sentencing

by (1) assessing two criminal history points, pursuant to U.S.S.G. § 4A1.1(d),

because his two-day sentence for driving without a license was not a “criminal

justice sentence” as defined by U.S.S.G. § 4A1.2; (2) determining that he was

“found” in the United States while serving that two-day sentence; and (3) imposing

a sentence that was unreasonable under United States v. Booker, 543 U.S. 220

(2005).1 After careful review, we affirm.

These are the facts relevant to Gomez-Lopez’s sentencing claims. On

February 2, 2005, a federal grand jury indicted Gomez-Lopez, a native and citizen

of Mexico, for being an alien present in the United States following his deportation

based on a felony conviction, in violation of 8 U.S.C. § 1326(a), (b)(1). Gomez-

Lopez pled guilty to the charged crime and admitted, during his plea colloquy, that

Bureau of Immigration and Customs Enforcement (“ICE”) agents found him at the

Pinellas County jail on January 24, 2005. Gomez-Lopez then proceeded to

sentencing.

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We have jurisdiction to review the reasonableness of Gomez-Lopez’s sentence, pursuant
to 18 U.S.C. § 3742. See United States v. Martinez, 434 F.3d 1318 (11th Cir. 2006) (rejecting
government’s threshold argument that this Court lacks jurisdiction under 18 U.S.C. § 3742(a) to
review a sentence within a correctly-calculated guideline range for reasonableness; concluding that
“a post-Booker appeal based on the ‘unreasonableness’ of a sentence, whether within or outside the
advisory guidelines range, is an appeal asserting that the sentence was imposed in violation of law
pursuant to § 3742 (a)(1)”).

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 According to the Presentence Investigation Report (“PSI”), on January 22,

2005, the Pinellas County Sheriff’s Office, which had Gomez-Lopez in custody for

driving without a license, contacted ICE after a check of Gomez-Lopez’s

fingerprints revealed that he was an alien who previously had been deported. A

subsequent ICE investigation confirmed that, on January 9, 2003, Gomez-Lopez

had been deported from the United States after being convicted of a felony.

Gomez-Lopez subsequently admitted to the ICE agents that he illegally re-entered

the United States in February 2004 and that he “was looking for a better life for his

family,” who were already in the United States.

The PSI recommended a base-offense level of 8, pursuant to U.S.S.G. §

2L1.2(a), as well as a 16-level upward adjustment for the commission of a crime of

violence, U.S.S.G. § 2L1.2(b)(1)(A)(ii), and a 3-level reduction for acceptance of

responsibility, U.S.S.G. § 3E1.1. Thus, Gomez-Lopez’s adjusted offense level was

a 21. In calculating Gomez-Lopez’s criminal history, the PSI listed the following

offenses: (1) in 2000, Gomez-Lopez was convicted in Florida for driving without a

license; (2) in 2001, Gomez-Lopez was convicted in Florida of aggravated assault

with a deadly weapon without intent to kill for which he was sentenced to one year

of community control and 50 hours of community service but ultimately served 4

months’ imprisonment after pleading guilty to violating the terms of his

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community control; and (3) in 2005, Gomez-Lopez again was convicted of driving

without a license in Florida and served two days in jail. The PSI assessed two

criminal-history points for the 2001 offense and no points for the 2000 and 2005

convictions. The PSI added two criminal-history points under § 4A1.1(d) because

Gomez-Lopez committed his instant offense while serving the 2005 sentence for

driving without a license. With an adjusted offense level of 21 and a criminal

history category III, Gomez-Lopez’s Guidelines range was 46 to 57 months’

imprisonment.

Prior to sentencing, Gomez-Lopez moved for a downward departure under

U.S.S.G. § 5K2.0, arguing that the enhancement under U.S.S.G. § 2L1.2(b)(1)(A),

for commission of a crime of violence, overrepresented the nature of his criminal

history. Gomez-Lopez lodged no objections to the PSI’s factual statements.

However, he did argue at the sentencing hearing that the government failed to

show that the ICE agents found him while he was serving a sentence. He asserted

that the agent found him before the state court sentenced him and, thus, he was not

under a sentence when found. In response, the probation office noted that Gomez-

Lopez admitted during the plea colloquy that ICE agents found him in state

custody. The district court overruled Gomez-Lopez’s objection to the

enhancement for being found in the United States while serving a sentence.

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 Gomez-Lopez then requested an adjustment to his criminal-history category,

arguing that the state court had imposed a 2-day sentence only for the purpose of

detaining him until the ICE agents could interview him. The district court stated

that it would not second-guess the state court judgment and found it reasonable for

the state court to impose a two-day sentence since it was Gomez-Lopez’s second

offense for driving without a license.

Before pronouncing sentence, the district court noted that it considered §

3553 and the Guidelines as modified by United States v. Booker, 543 U.S. 220

(2005). The court then sentenced Gomez-Lopez to a 46-month term of

imprisonment, followed by three years’ supervised release. This appeal followed.

First, Gomez-Lopez argues that the two-day sentence for driving without a

license, imposed on January 23, 2005, was not a countable “criminal justice

sentence,” within the meaning of § 4A1.1(d), and therefore could not serve as the

basis for an enhancement of his offense level under that section. Gomez-Lopez’s

appellate argument differs from the position he asserted in the district court when

he argued that he was not “found in” the United States while serving a sentence.

More specifically, Gomez-Lopez asserted that he was “found” before he started

serving the sentence. Notably, he did not argue, as he does now, that the 2-day

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sentence was not scoreable and could not sustain a criminal history enhancement

under § 4A1.1(d).

It is well-settled that “where the district court has offered the opportunity to

object and a party is silent or fails to state the grounds for objection, objection to

the sentence will be waived for purposes of appeal.” United States v. Nyhuis, 8

F.3d 731, 743 (11th Cir. 1993) (citation omitted). To preserve an issue for later

consideration, the objection must be “sufficient to apprise the trial court and the

opposing party of the particular grounds upon which appellate relief will later be

sought. A general objection or objection on other grounds will not suffice.” Id.

(quotation omitted).

Gomez-Lopez did not object before the district court on the ground he raises

now, and, accordingly, we will review his claim for only plain error. See United

States v. Harness, 180 F.3d 1232, 1234 (11th Cir. 1999). To prevail under this

standard, Gomez-Lopez must show “(1) error, (2) that is plain, and (3) that affects

substantial rights.” See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir.) (internal quotations and citations omitted), cert. denied, 125 S. Ct. 2935

(2005). “If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affects the

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fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation and

citation omitted).

Pursuant to U.S.S.G. § 4A1.1(d), a defendant may receive two

criminal-history points if he “committed the instant offense while under any

criminal justice sentence, including probation, parole, supervised release,

imprisonment, work release, or escape status.” U.S.S.G. § 4A1.1(d). A “criminal

justice sentence” is one that is countable under U.S.S.G. § 4A1.2. Id. at cmt. 4. A

sentence for driving without a license is counted only if it is a term of probation of

at least 1 year, or a term of imprisonment of at least 30 days. See U.S.S.G.

§ 4A1.2(c)(1).

Here, the district court awarded two criminal-history points to Gomez-Lopez

based on the fact that he was found in the United States while serving a sentence

for driving without a license. Because the sentence Gomez-Lopez was serving was

for only 2 days, the district court erred in its application of the Guidelines and the

error was plain. As a result of the error, Gomez-Lopez’s criminal history category

was determined to be III, instead of II. This error resulted in a Guideline range of

46 to 57 months’ imprisonment at an offense level of 21, instead of a range of 41

to 51 months’ imprisonment.

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 Turning to the third prong of the plain-error test, Gomez-Lopez has the

burden of showing “a reasonable probability of a different result” if the court did

not err in its calculation. Rodriguez, 398 F.3d at 1301. Where the effect of the

error is indeterminate, the appellant has not met his burden. Id. (citation omitted).

A district court’s imposition of a sentence at the low end of the Guidelines range,

standing alone, is insufficient to show that the court would have sentenced a

defendant to a lower sentence had a lower Guideline range applied. United States

v. Munoz, 430 F.3d 1357, 1375-76 (11th Cir. 2005).

Here, Gomez-Lopez’s 46-month sentence was within the 41 to 51-month

guideline range and the district court stated that the 46-month term of

imprisonment was sufficient, but not longer than necessary. Moreover, the court

said that it had considered the § 3553 factors and the effect of Booker on the

Guidelines. On this record, the district court’s statement that it was imposing a

sentence at the low end of the range, standing alone, is insufficient to show that the

error affected Gomez-Lopez’s substantial rights. Cf. United States v. Fields, 408

F.3d 1356 (11th Cir. 2005) (under plain-error review, holding that the fact that the

defendant was sentenced to the bottom of the mandatory Guidelines range, without

more, was insufficient to satisfy the third prong’s requirement that the defendant

show a reasonable probability of a lesser sentence under an advisory Guideline

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system). Accordingly, Gomez-Lopez has not met his burden of showing that the

error affected his substantial rights, within the meaning of the third prong of the

plain-error test, and, we cannot find plain error on this basis.

Next, Gomez-Lopez argues that he was not “found in” the United States

while serving his sentence because the ICE agents learned of his presence in the

United States before the state court sentenced him. We review the district court’s

findings of fact for clear error and “questions of law arising under the Sentencing

Guidelines de novo.” United States v. Crawford, 407 F.3d 1174, 1177-78 (11th

Cir. 2005).

Section 4A1.1(d) provides that two points should be added to the criminal

history category “if the defendant committed the instant offense while under any

criminal justice system sentence, including probation, parole, supervised release,

imprisonment, work release, or escape status.” U.S.S.G. § 4A1.1(d). Section

4A1.1(d) applies “if the defendant committed any part of the instant offense (i.e.,

any relevant conduct) while under any criminal justice sentence.” Id., comment.

(n.4). We have noted that

[u]nder 8 U.S.C. § 1326, any alien who has been deported and
thereafter enters, attempts to enter, or is at any time found in the
United States, shall be fined or imprisoned. 8 U.S.C. § 1326(a)(1) and
(2) (emphasis supplied). Thus, [t]he statute contains three separate
and distinct offenses, set forth disjunctively: entering, attempting to
enter, or being found in the United States.

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United States v. Clarke, 312 F.3d 1343, 1346 (11th Cir. 2002) (quotation marks

omitted). “To be ‘found in’ the United States within the meaning of § 1326, the

alien must have entered surreptitiously, bypassing a recognized immigration port

of entry. The phrase ‘found in’ is synonymous with ‘discovered in.’” Id.

(quotation marks omitted). “[W]hen a defendant enters a plea of guilty to being

‘found in’ the United States on a certain date, the issue of when the offense was

committed is settled, and the defendant may not later dispute that date.” United

States v. Coeur, 196 F.3d 1344, 1346 (11th Cir. 1999). “By definition, one must

enter the United States, either legally or illegally, in order to be found therein.”

United States v. Castrillon-Gonzalez, 77 F.3d 403, 406 (11th Cir. 1996). “[T]he

commencement of the crime of being ‘found in’ the United States is at the point of

entry” and “was not complete until [the] defendant’s arrest.” Id.

The district court did not err by assessing two criminal-history points for

commission of the instant offense of being “found in” the United States while

Gomez-Lopez was in the Pinellas County jail. Gomez-Lopez’s jail term began on

January 23, 2005, and he admitted that he entered the United States in February

2004 after being deported. Moreover, at the plea colloquy, he admitted that

immigration officials found him in the United States on January 24, 2005. Gomez-

Lopez’s crime of being “found in” the United States commenced as early as

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February 2004, and was completed on January 24, 2005, when he was arrested.

Therefore, Gomez-Lopez committed some portion of the instant offense while in

jail, making the district court’s addition of two criminal history points proper.

Finally, Gomez-Lopez argues that his 46-month sentence was unreasonable.

He asserts that he returned to the United States after he was deported because he

needed work to support his family and, aside from one prior felony conviction, he

has been both law-abiding and hardworking. Sentences imposed under an advisory

Guidelines system are reviewed for “unreasonableness.” Booker, 543 U.S. at 261.

Following the Booker decision, we have stated that the district court must correctly

calculate the Guidelines range, and then, using the 18 U.S.C. § 3553(a) sentencing

factors, can impose a more severe or more lenient sentence as long as it is

reasonable. Crawford, 407 F.3d at 1179.

The § 3553(a) factors include the available sentences; the applicable

Guideline range and policy statements; the nature and circumstances of the

offense; and the need for the sentence to (1) reflect the seriousness of the offense,

promote respect for the law, and provide just punishment for the offense, (2) afford

adequate deterrence to criminal conduct, (3) protect the public from further crimes

of the defendant, and (4) provide the defendant with needed correctional treatment.

See 18 U.S.C. § 3553(a). “[N]othing in Booker or elsewhere requires the district

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court to state on the record that it has explicitly considered each of the § 3553(a)

factors or to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d

1324, 1329 (11th Cir. 2005).

“Review for reasonableness is deferential.” United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). “[T]he party who challenges the sentence bears the

burden of establishing that the sentence is unreasonable in the light of both th[e]

record and the factors in section 3553(a).” Id. A sentence within the advisory

guidelines range is not per se reasonable, but is expected to be reasonable. See id.

at 788 (“when the district court imposes a sentence within the advisory Guidelines

range, we ordinarily will expect that choice to be a reasonable one.”). We have

held that a district court’s statement that it had considered the § 3553(a) factors

alone is sufficient in post-Booker sentences to indicate that it considered the

factors, and concluded that the defendant’s sentence was reasonable because the

district court accurately calculated the Guideline range and the defendant’s

sentence at the low end of the range reflected the court’s consideration of his

evidence in mitigation. See Scott, 426 F.3d at 1330.

We readily conclude that Gomez-Lopez’s 46-month sentence is reasonable.

Gomez-Lopez’s sentence was in the middle of the correctly determined Guidelines

range, a range that takes into account his offense conduct, his personal

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characteristics and history, just punishment, and adequate deterrence. The district

court explicitly mentioned its consideration of the § 3553(a) factors and Gomez-

Lopez’s mitigating evidence and concluded that Gomez-Lopez could use his time

in prison to learn a trade in order to support his family. In short, Gomez-Lopez’s

sentence was reasonable and, accordingly, we affirm.

AFFIRMED.

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