           Case: 19-12724   Date Filed: 03/19/2020   Page: 1 of 8



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12724
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:18-cr-00340-KD-B-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

MARCO ANTONIO PEREZ,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                      ________________________

                            (March 19, 2020)

Before NEWSOM, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:
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      Marco Perez appeals his fifty-one-month sentence for possession of stolen

firearms in violation of 18 U.S.C. § 922(j). He argues that the district court incor-

rectly applied the sentencing guidelines. The government claims that, regardless of

whether the district court erred, we should still affirm the sentence because the dis-

trict court stated it would impose an identical sentence notwithstanding any error in

its guidelines calculations. See United States v. Keene, 470 F.3d 1347, 1350 (11th

Cir. 2006) (“[I]t would make no sense to set aside [a] reasonable sentence and send

the case back to the district court [because of an error in calculating the sentencing

guidelines] since it has already told us that it would impose exactly the same sen-

tence, a sentence we would be compelled to affirm.”). We agree that Keene applies;

if there was any error in the district court’s guidelines calculations, it was harmless;

and the sentence was substantively reasonable. We therefore affirm.

                                    BACKGROUND

      Perez pleaded guilty to one count of possession of stolen firearms. At his

sentencing hearing, he objected to a two-level sentence enhancement because his

offense involved four firearms and a two-level enhancement for obstructing justice.

Perez also objected to the district court’s refusal to apply a three-level reduction for

acceptance of responsibility. The district court overruled all three objections. Based

on the presentence investigation report, the district court noted a total offense level

of twenty with a criminal history category of IV, resulting in a guidelines sentencing


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range of fifty-one to sixty-three months. According to Perez, the appropriate guide-

lines sentencing range should have been twenty-four to thirty months based on an

offense level of thirteen and a criminal history category of IV.

      At the sentencing hearing, after considering the 18 U.S.C. § 3553(a) factors,

the district court sentenced Perez to fifty-one months’ imprisonment and noted that

was “an appropriate sentence, whether [it had] correctly calculated the guidelines or

not.” In making that determination, it gave Perez credit for pleading guilty and not

forcing the government to prove its case. It also acknowledged that Perez had an

extensive criminal history consisting of fourteen prior burglary and theft offenses

and that he absconded from pretrial supervision during which time he fatally shot

Mobile Police Department Officer Sean Tuder.

      Perez now appeals his sentence. He argues that the district court inappropri-

ately applied the enhancements and that it should have applied the three-level reduc-

tion for acceptance of responsibility. Perez also claims, for the first time on appeal,

that had the district court sustained his objections and the proper guidelines range

was twenty-four to thirty months, it could not have made an upward departure from

the sentencing guidelines to impose a fifty-one-month sentence because he had not

received notice of its intent to impose an upward departure. The government re-

sponds that we do not need to consider Perez’s arguments regarding his guidelines




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range because the district court stated that it would impose the same sentence re-

gardless of any guidelines error and that notice was not required.

                              STANDARD OF REVIEW

      We normally review a district court’s application of the sentencing guidelines

de novo and its factual findings for clear error. United States v. Maitre, 898 F.3d

1151, 1159 (11th Cir. 2018). When a district court states that it would have imposed

the same sentence irrespective of an alleged guidelines calculation error, however,

the assumed error is harmless, and we will affirm the sentence if it is reasonable.

Keene, 470 F.3d at 1348–49. We review whether a sentence is substantively rea-

sonable for abuse of discretion. United States v. Irey, 612 F.3d 1160, 1188 (11th

Cir. 2010) (en banc).

                                   DISCUSSION

                                      Sentence

      We first review Perez’s claims regarding error in the district court’s guidelines

calculation. In Keene, much like in this case, the defendant argued that the district

court made a guidelines calculation error. 470 F.3d at 1348. In that case, the district

court imposed a sentence within the guidelines range over the defendant’s objection,

but also noted that it would have imposed the same sentence under 18 U.S.C.

§ 3553(a) even if it got the guidelines calculation wrong. Id. We observed that “it

would make no sense to set aside [a] reasonable sentence and send the case back to


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the district court” where the district court had already stated that it would impose the

same sentence regardless of the guidelines and we, therefore, “would be compelled

to affirm.” Id. at 1350.

      To determine whether the Keene rule applies, we first ask whether “the district

court would have reached the same result even if it had decided the guidelines issue

the other way.” Id. at 1349. Second, we ask whether “the sentence would be rea-

sonable even if the guidelines issue had been decided in the defendant’s favor.” Id.

In assessing reasonableness, we assume that the claimed guidelines calculation error

occurred, adjust the guidelines range accordingly, and ask whether the sentence im-

posed is reasonable under the 18 U.S.C. § 3553(a) factors. Id. at 1349. The defend-

ant has the burden of “prov[ing] that his sentence is unreasonable in light of the

record and § 3553(a).” Id. at 1350. If the district court imposed a reasonable sen-

tence, we affirm.

      Here, the district court imposed a guidelines sentence, but also found the sen-

tence reasonable even if it had made a guidelines error. It said that fifty-one months

was “an appropriate sentence, whether [it had] correctly calculated the guidelines or

not.” Keene therefore applies, and we turn to whether the sentence was reasonable.

Perez makes no claim that the district court imposed an unreasonable sentence, but

even if he did, the claim would fail because the district court appropriately consid-

ered the § 3553(a) factors. Granting Perez’s objections, his guidelines range should


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have been twenty-four to thirty months. At the sentencing hearing, the district court

assessed all the “facts and circumstances” of the case, including that Perez ab-

sconded from pretrial supervision and fatally shot Officer Tuder, that his offense

involved several instances of breaking into cars to steal firearms so that he could

later sell them, and that he had an extensive criminal history. That history consisted

of fourteen separate breaking and entering offenses in less than three years. While

the district court considered more than Perez’s criminal history, we have previously

“upheld large upward deviations based solely on an offender’s extensive criminal

history.” United States v. Osorio-Moreno, 814 F.3d 1282, 1288 (11th Cir. 2016)

(sentence exceeding guidelines maximum by fifty-seven months not substantively

unreasonable because of defendant’s twenty prior convictions); United States v.

Shaw, 560 F.3d 1230, 1239 (11th Cir. 2009) (sentence exceeding guidelines maxi-

mum by eighty-three months not substantively unreasonable primarily because of

“twenty-six known episodes of criminal behavior”). Given Perez’s extensive crim-

inal history and the number of other serious considerations examined at the sentenc-

ing hearing, the district court did not abuse its discretion by imposing a sentence

twenty-one months greater than Perez’s claimed guidelines maximum.

                                       Notice

      We turn then to Perez’s argument that the district court could not impose an

upward departure from what the guidelines range should have been (according to


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him) without notice. The Federal Rules of Criminal Procedure require the court to

provide notice to the parties if it contemplates a “departure” from the applicable

guidelines sentencing range. Fed. R. Crim. P. 32(h). “‘Departure’ is a term of art

under the Guidelines and refers only to non-Guidelines sentences imposed under the

framework set out in the Guidelines.” Irizarry v. United States, 553 U.S. 708, 714

(2008). The notice requirement therefore applies only when the district court im-

poses a departure authorized by 18 U.S.C. § 3553(b). Id. It does not apply to “var-

iances from Guidelines ranges that a district court may find justified under the sen-

tencing factors set forth in 18 U.S.C. § 3553(a).” Id. at 715; see also United States

v. Plasencia, 886 F.3d 1336, 1344–45 (11th Cir. 2018) (“[N]otice, although neces-

sary for a court to issue an upward departure, is not necessary for a court to issue an

upward variance.” (footnote omitted)). In other words, if the district court contem-

plates adjusting a guidelines sentence based on the factors identified by § 3553(b) (a

“departure”), it must provide the parties notice. If the district court modifies a sen-

tence using the factors in § 3553(a) (a variance), it need not provide notice to the

parties.

       Here, the district court did not impose a “departure.” Even assuming that Pe-

rez was correct and the guidelines range should have been much lower, the district

court used its sentencing authority under § 3553(a) to apply an upward variance fit-

ting the facts and circumstances of Perez’s case, rather than a departure from the


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guidelines under § 3553(b). Therefore, it committed no error in not providing notice

to Perez.

                                 CONCLUSION

      Because any error in calculating Perez’s guidelines range was harmless, his

sentence was reasonable, and the district court did not impose a sentencing departure

requiring notice, we affirm.

      AFFIRMED.




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