United States v. Carlos Antonio German

Case: 16-11217 Date Filed: 02/23/2017 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-11217
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20698-JAL-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ANTONIO GERMAN,
a.k.a. Platano,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(February 23, 2017)

Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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Carlos German appeals his 70-month sentence, imposed after he pled guilty

to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

He contends that the district court procedurally erred by relying on a base offense

level of 24 to calculate the guideline range because his prior Florida conviction of

burglary of a dwelling is not a conviction of a crime of violence under the

sentencing guidelines. He argues that his conviction is not an enumerated

conviction of a crime of violence and that the residual clause of the definition of

“crime of violence” is unconstitutionally vague. He maintains that the district

court’s procedural error warrants reversal and cannot be viewed as harmless.

We review de novo whether a prior conviction qualifies as a conviction of a

crime of violence. United States v. Estrada, 777 F.3d 1318, 1321 (11th Cir. 2015).

We may affirm a sentence “for any reason supported by the record, even if not

relied upon by the district court.” United States v. Hall, 714 F.3d 1270, 1271 (11th

Cir. 2013) (quotation omitted). We review a sentence under the abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).

The base offense level for the crime of unlawful possession of a firearm is

24 “if the defendant committed any part of the instant offense subsequent to

sustaining at least two felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 2K2.1(a)(2); see also U.S.S.G. § 2K2.1,

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comment. (n. 1) (referring to U.S.S.G. § 4B1.2(a) for the definition of “[c]rime of

violence”).

The term “crime of violence” means any 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 burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another.

U.S.S.G. § 4B1.2(a); see also United States v. Matchett, 802 F.3d 1185, 1193-94

(11th Cir. 2015) (referring to the final clause in the definition of “crime of

violence” as the residual clause).

For offenses committed on or before July 1, 2001,
“burglary” means entering or remaining in a dwelling, a
structure, or a conveyance with the intent to commit an
offense therein, unless the premises are at the time open
to the public or the defendant is licensed or invited to
enter or remain.

Fla. Stat. § 810.02(1)(a). The Florida crime of burglary of a dwelling is “a crime

of violence under the residual clause . . . because it ‘involves conduct that presents

a serious potential risk of physical injury to another.’” Matchett, 802 F.3d at 1197

(quoting U.S.S.G. § 4B1.2(a)(2)).

We held that the sentencing guidelines cannot be unconstitutionally vague

because they are merely an advisory tool to assist sentencing judges in determining

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appropriate sentences. Id. at 1194-96. The vagueness doctrine “rests on a lack of

notice” and does not apply to these advisory guidelines because a defendant cannot

expect to receive a sentence within the applicable guideline range. Id. at 1194-95

(quotation omitted).

German’s Florida conviction of burglary of a dwelling is a conviction of a

crime of violence under the residual clause of the sentencing guidelines. See

Matchett, 802 F.3d at 1197. Binding precedent forecloses his contention that the

residual clause is unconstitutionally vague. See id. at 1194-96. German does not

dispute that he also has a prior felony conviction of a controlled-substance offense.

The district court did not err by relying on a base offense level of 24 for the

purpose of calculating the applicable guideline range. See U.S.S.G. § 2K2.1(a)(2).

The Government asserts that we may also affirm on the grounds that the

district court in this case stated that it would have imposed the same sentence. We

will affirm a sentence based on harmless error in calculating the guideline range if

we know that the district court would have imposed the same sentence regardless

of its ruling on a guidelines issue, and the sentence is reasonable even if that issue

was decided in the defendant’s favor. United States v. Keene, 470 F.3d 1347, 1349

(11th Cir. 2006). The defendant has the burden of establishing the

unreasonableness of the sentence had the court decided the guidelines issue in the

defendant’s favor. See id. at 1350.

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The district court determined that even if it erred by relying on a base

offense level of 24, a 70-month sentence was appropriate. The district court stated

that its decision was based upon German’s possession of two firearms, magazines,

and ammunition and his sale of those items to the confidential informant on two

different dates. The district court further based its decision on German’s

“extensive criminal history for just about half his life, since he’s 16 to 32.”

Finally, the district court referenced the § 3553(a) factors and stated that a 70-

month sentence was “sufficient, but not greater, than necessary, to reflect the need

for the sentence imposed to reflect just how serious this offense is, the need to

afford adequate deterrence to criminal conduct, to promote respect for the law and

provide just punishment.”

A 70-month sentence was not an unreasonable sentence for German. As the

court pointed out, German has an adult criminal record that begins at age 16 with

the commission of a felony and includes convictions of burglary of a dwelling,

attempted burglary, and several controlled substance offenses. Thus even if the

district court erred in calculating the guidelines range, the error was harmless

because the sentence was reasonable.

AFFIRMED.

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ROSENBAUM, Circuit Judge, concurring:

I concur in the result of this decision. I write separately to note only that I

continue to respectfully disagree with our analysis in United States v. Matchett,

802 F.3d 1185 (11th Cir. 2015), for the reasons I have previously expressed in

United States v. Matchett, 837 F.3d 1118, 1143 (11th Cir. 2016) (Rosenbaum, J.,

dissenting from denial of rehearing en banc).

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