[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14450 ELEVENTH CIRCUIT
MAY 28, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-80020-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE VELAZQUEZ-TORNET,
a.k.a. Enrique Velazquez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 28, 2009)
Before TJOFLAT, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Enrique Velazquez-Tornet appeals his sentence of 60 months’
imprisonment, the statutory mandatory minimum penalty, arguing that it violated
his equal protection and Eighth Amendment rights. For the reasons set forth
below, we affirm.
I.
Pursuant to a written plea agreement, Velazquez-Tornet pled guilty to four
counts of bringing undocumented aliens into the United States for the purpose of
financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2
(Counts Two, Four, Five, and Eight).
The probation officer prepared a pre-sentence investigation report (“PSI”),
where he determined that Velazquez-Tornet had a guideline range of 12 to 18
months’ imprisonment. However, the probation officer also determined that, with
respect to Counts 5 and 8, Velazquez-Tornet was subject to the statutory
mandatory minimum sentence of 60 months’ imprisonment under
§ 1324(a)(2)(B)(ii), which became his guideline sentence under U.S.S.G.
§ 5G1.1(b).
Velazquez-Tornet objected to the PSI, arguing that he was entitled to a
minor-role reduction and that application of the five-year statutory mandatory
minimum penalty violated his equal protection and Eighth Amendment rights.
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At sentencing, the court began by stating that it had reviewed the PSI and the
objections to the PSI, at which point the following colloquy took place:
DEFENSE COUNSEL: Judge, if I might. I’m going to interrupt
because I’m withdrawing those objections.
I’ve spoke to [the prosecutor], and we were
able to resolve them. This is going to be a
real easy sentencing. There are no
objections. . . .
COURT: So the objections are withdrawn?
DEFENSE COUNSEL: Yes.
Defense counsel then informed the court that Velazquez-Tornet understood that he
was subject to the five-year statutory mandatory minimum sentence. The court
thereafter sentenced Velazquez-Tornet to 36 months’ imprisonment on Counts 2
and 4, and 60 months’ imprisonment on Counts 5 and 8, to run concurrently.
Defense counsel stated that he had no objections to the sentence.
II.
On appeal, Velazquez-Tornet argues that the applicable five-year statutory
mandatory minimum penalty violates equal protection because it makes irrational
and arbitrary classifications among offenses and that it violates the Eighth
Amendment’s prohibition on cruel and unusual punishment. However, defense
counsel affirmatively and unequivocally withdrew this exact argument at
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sentencing. As a result, this argument is deemed waived for purposes of appeal,
and we do not review it. See United States v. Horsfall, 552 F.3d 1275, 1283-84
(11th Cir. 2008) (concluding that defense counsel’s affirmative withdrawal of an
objection to the PSI at sentencing precluded this Court from reviewing that
argument on appeal), petition for cert. filed, (U.S. Mar. 18, 2009) (No. 08-9396).
III.
Accordingly, we affirm Velazquez-Tornet’s sentence.
AFFIRMED.
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