[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 25, 2008
No. 08-11513 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00379-CR-T-30-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOANKYS PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 25, 2008)
Before DUBINA, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Yoankys Perez appeals from the district court’s 24-month sentence after
pleading guilty to one count of knowingly and willfully manufacturing 100 or
more marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii) and
18 U.S.C. § 2. Because Perez qualified for relief under the safety-valve provision
in U.S.S.G. § 5C1.2(a), the district court sentenced Perez below the five-year
statutory minimum sentence and at the low-end of his applicable guideline range.
On appeal, Perez contends that: (1) the district court erred in calculating his
applicable guideline range; and (2) his sentence was unreasonable under United
States v. Booker, 543 U.S. 220 (2005), because the court applied the Guidelines in
a mandatory fashion. After thorough review, we affirm.
We review de novo the district court’s guideline calculations. United States
v. DeVegter, 439 F.3d 1299, 1303 (11th Cir. 2006). “We review a properly
preserved claim of Booker error de novo . . . .” Id.
First, we find no merit to Perez’s contention that the district court erred in
calculating his guideline range. A defendant qualifies for relief under the safety-
valve provision in § 5C1.2(a) if he is convicted under, inter alia, 21 U.S.C. § 841,
and satisfies five specified criteria. U.S.S.G. § 5C1.2(a); see 18 U.S.C. § 3553(f)
(providing the same). Subject to § 5C1.2(b), if a defendant meets these
requirements, “the court shall impose a sentence in accordance with the applicable
guidelines without regard to any statutory minimum sentence . . . .” U.S.S.G.
§ 5C1.2(a). However, § 5C1.2(b) provides in full: “In the case of a defendant (1)
who meets the criteria set forth in subsection (a); and (2) for whom the statutorily
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required minimum sentence is at least five years, the offense level applicable from
Chapters Two (Offense Conduct) and Three (Adjustments) shall be not less than
level 17.” U.S.S.G. § 5C1.2(b).
Although the district court sentenced Perez to 24 months’ imprisonment --
below the 5-year statutory minimum and at the low-end of his applicable guideline
range -- Perez nonetheless contends that the district court erred in calculating his
applicable guideline range. He argues that his base offense level of 16 should have
been lowered by 3 levels for acceptance of responsibility under § 3E1.1(a)-(b) and
2 levels under the safety-valve reduction in § 2D1.1(b)(11), giving him a total
offense level of 11. Perez’s argument is foreclosed by the plain language of
§ 5C1.2(b), providing that “the offense level applicable from Chapters Two
(Offense Conduct) and Three (Adjustments) shall be not less than level 17.”
U.S.S.G. § 5C1.2(b). The “offense level” referred to § 5C1.2(b) is based on
“Chapters Two (Offense Conduct) and Three (Adjustments)” and, therefore,
includes the safety-valve reduction in § 2D1.1(b)(11) and the adjustment for
acceptance of responsibility in § 3E1.1(a)-(b). Id.; see United States v. Nunez, 209
Fed. App’x 896, 898 (11th Cir. 2006) (unpublished opinion) (“The text of U.S.S.G.
§ 5C1.2(b) unambiguously instructs that in these circumstances an offense level of
no lower than 17 must be set after Chapter Three is applied.”); United States v.
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Keresztury, 293 F.3d 750, 759 n.21 (5th Cir. 2002) (“U.S.S.G. § 5C1.2 expressly
forbids the application of Chapter Three (which includes § 3E1.1) to yield a result
less than offense level 17.”). Accordingly, the district court did not err in
calculating Perez’s applicable guideline range in this respect.
We also are unpersuaded that the district court committed Booker error in
imposing Perez’s sentence. A district court commits error under Booker if its
applies the Guidelines in a mandatory fashion. United States v. Shelton, 400 F.3d
1325, 1330-31 (11th Cir. 2005) (“Booker error exists when the district court
misapplies the Guidelines by considering them as binding as opposed to
advisory.”). Nonetheless, the district court is still required after Booker to
calculate the defendant’s applicable guideline range correctly. United States v.
Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (“[A] district court should begin all
sentencing proceedings by correctly calculating the applicable Guidelines range.”)
(quoting Gall v. United States, 128 S.Ct. 586, 596 (2007)).
Contrary to Perez’s argument, the district court’s proper calculation of his
Guidelines range under § 5C1.2(b) does not indicate that it believed the range to be
binding. Further, there is nothing in the record to suggest that the district court
applied the Guidelines in a mandatory fashion. Accordingly, Perez has not shown
that the district court committed Booker error in imposing his sentence.
AFFIRMED.
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