              Case: 15-12644    Date Filed: 01/20/2016   Page: 1 of 4


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-12644
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:13-cr-00592-SDM-AEP-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

MATTHEW ANILLO MANGO,

                                                             Defendant-Appellant.

                          ________________________

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

                                (January 20, 2016)

Before ED CARNES, Chief Judge, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Matthew Anillo Mango appeals from his 120-month sentence, imposed after

he pleaded guilty to one count of being a felon in possession of ammunition, in
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violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He challenges his sentence on

two grounds. Neither is successful.

      Mango first challenges the procedural reasonableness of his sentence,

contending that the district court erred in declining to apply a downward

adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. We review

the district court’s determination of acceptance of responsibility for clear error.

United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005). Under that

standard, “we will not set aside a district court’s determination that a defendant is

not entitled to a § 3E1.1 adjustment unless the facts in the record clearly establish

that the defendant has accepted responsibility.” Id. at 1022–23. “The defendant

bears the burden of clearly demonstrating acceptance of responsibility and must

present more than just a guilty plea.” Id. at 1023 (quotation marks omitted).

      The district court declined to apply a downward adjustment for acceptance

of responsibility based largely on Mango’s post-offense conduct. Mango

absconded from pretrial services, failed to appear at his sentencing hearing, and

engaged in other criminal conduct. Mango responds that he demonstrated

acceptance of responsibility by pleading guilty without a plea agreement. He

asserts that he did not abscond to escape punishment, but to attend to his ill

daughter’s medical care. That explanation does not overcome the great deference

we owe to the district court’s determination. See United States v. Villarino, 930



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F.2d 1527, 1530 (11th Cir. 1991) (“Because the district court is in a unique

position to evaluate a defendant’s acceptance of responsibility, the sentencing

judge’s determination is entitled to great deference on review and should not be

disturbed unless it is without foundation.”) (quotation marks omitted). In light of

Mango’s post-offense conduct, the district court did not clearly err in determining

that he had not accepted responsibility and declining to apply a downward

adjustment as a result.

       Mango next contends that the district court violated his constitutional right

to due process by potentially relying on a misimpression. Specifically, he asserts

that the court was under the mistaken belief that he had entered into a plea

agreement, thereby deriving something in return for pleading guilty, which may

have influenced the court’s denial of a downward adjustment for acceptance of

responsibility. We review de novo a constitutional challenge to a sentence.1

United States v. Ghertler, 605 F.3d 1256, 1268 (11th Cir. 2010). To prevail on an

argument that the district court relied on erroneous information, the defendant must

establish that false information “actually served as the basis for the sentence.” Id.

at 1269. The defendant “bears the burden of showing that the court explicitly

relied on the information.” Id. (quotation marks omitted). Although Mango

       1
         The government contends that we should review only for plain error because Mango did
not present his constitutional challenge to the district court. Because we find that Mango’s
argument fails even under de novo review, we do not address whether the plain error standard
applies.


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acknowledges that our precedent requires a showing of actual reliance, he invites

us to consider the issue en banc, to recede from our precedent, and to adopt the

Second Circuit’s more lenient approach.

      Even if Mango is correct that the district court mistakenly believed that a

plea agreement existed, he has failed to show that the court actually and explicitly

relied upon that belief in reaching its sentencing decision. The court identified a

number of considerations and factors that were relevant to its decision. None of

them included the belief that the guilty plea had been part of a plea agreement.

Because Mango’s assertion that the court may have relied on that mistaken belief is

mere speculation, he has failed to show constitutional error. We decline his

invitation to depart from our prior precedent. See United States v. Vega-Castillo,

540 F.3d 1235, 1236 (11th Cir. 2008) (“Under the prior precedent rule, we are

bound to follow a prior binding precedent unless and until it is overruled by this

court en banc or by the Supreme Court.”) (quotation marks omitted).

      AFFIRMED.




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