              Case: 12-12114     Date Filed: 02/06/2013   Page: 1 of 3

                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-12114
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 3:11-cr-00155-MMH-JBT-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

JOSE LOUIS RAMOS VARGAS,
a.k.a. Jose Ramos,
a.k.a. Jose Vargas,

                                                              Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                               (February 6, 2013)

Before PRYOR, MARTIN and JORDAN, Circuit Judges.

PER CURIAM:

      Jose Vargas appeals his sentence of 180 months of imprisonment, following

his plea of guilty to possessing a firearm as a convicted felon. 18 U.S.C.
               Case: 12-12114     Date Filed: 02/06/2013    Page: 2 of 3

§§ 922(g)(1), 924(e). Vargas argues that the district court plainly erred in ruling

that his prior conviction in a New York court for attempted burglary in the second

degree qualified as a violent felony under the Armed Career Criminal Act. The

United States contends that Vargas invited the error. Our review of the record

reveals that, although Vargas did not invite the district court to classify his prior

conviction as a predicate offense, Vargas waived his right to challenge that

classification of his offense. We affirm.

      We disagree with the government that Vargas invited the district court to

classify his prior conviction as a predicate offense. “The doctrine of invited error

is implicated when a party induces or invites the district court into making an

error.” United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (quoting

United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998)). Vargas did not urge

or provoke the district court to rule that his conviction for attempted burglary was a

qualifying offense. Vargas objected to being sentenced as an armed career

criminal and argued that the United States could not identify him as the person

convicted of the attempted burglary and that the enhancement of his sentence

violated the prohibition against cruel and unusual punishment under the Eighth

Amendment.

      But Vargas is barred from challenging the classification of his offense under

the doctrine of waiver. “[W]aiver is the intentional relinquishment or

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abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.

Ct. 1770, 1777 (1993) (internal quotation marks omitted). Vargas decided to forgo

the argument that his prior conviction did not qualify as a predicate offense. When

asked by the district court whether Vargas was “contending that . . . [the prior

conviction was] not [an] actual predicate offense[],” Vargas’s counsel responded,

“No, Your Honor, we’re not” because the “caselaw . . . was not . . . helpful . . .

towards Mr. Ramos Vargas.” And Vargas did not respond when the district court

said that it “underst[oo]d . . . [that] there is no objection that [the attempted

burglary is a] qualifying offense[].” Because Vargas relinquished his right to

challenge the classification of his burglary offense, there exists no “error” for this

Court to correct. Id. at 732-33, 113 S. Ct. at 1777.

      We AFFIRM Vargas’s sentence.




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