         Case: 18-14928   Date Filed: 05/01/2020   Page: 1 of 26



                                                       [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 18-14928
                      Non-Argument Calendar
                    ________________________

             D.C. Docket No. 6:09-cr-00248-PGB-KRS-1



UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                versus

RAMON LOPEZ-ALVARADO,

                                                       Defendant-Appellant.


                    ________________________

                          No. 18-14930
                      Non-Argument Calendar
                    ________________________

             D.C. Docket No. 6:18-cr-00080-PGB-KRS-1



UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                versus
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RAMON LOPEZ-ALVARADO,

                                                                Defendant-Appellant.

                            ________________________

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

                                    (May 1, 2020)

Before WILSON, FAY and ANDERSON, Circuit Judges.

PER CURIAM:

      Ramόn Lopez-Alvarado, a citizen of Mexico, appeals following his

convictions and sentences for illegally re-entering the United States after

deportation and failing to register as a sex offender under the Sex Offender

Registration and Notification Act (“SORNA”), and the revocation of his

supervised release for committing those two offenses. We affirm.

                                          I.

      In 2009, federal authorities charged Lopez-Alvarado with one count of

failing to register as a sex offender, in violation of 18 U.S.C. § 2250. CM/ECF for

the M.D. Fla, no. 6:09-cr-00248-PGB-KRS-1 (“Lopez-Alvarado I”). In 2012, he

pled guilty pursuant to a plea agreement. Based on the plea agreement’s factual

basis, he admitted that in 1998, he pled guilty in state court to three counts of

committing a lewd act upon a 12-year-old child, in violation of Florida Statutes §

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800.04. He likewise admitted to being deported to Mexico after those convictions,

but illegally re-entering the United States, which prompted the state court to find

him guilty of violating probation. He admitted to being sentenced for the

probation violation, serving part of that sentence, being deported again to Mexico,

and returning to the United States later without permission.

      The district court sentenced Lopez-Alvarado to 15 months of imprisonment,

followed by five years of supervised release, which, in relevant part, prohibited

him from violating any federal, state, or local law and required him to register, in

any state in which he resided, with the state’s sexual offender registry and/or

SORNA. The district court entered a final judgment in Lopez-Alvarado I in

December 2012. He appealed; we affirmed in July 2013 after granting counsel

leave to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). United

States v. Lopez-Alvarado, 523 F. App’x 718 (11th Cir. 2013). Lopez-Alvarado

completed his custodial sentence and commenced his five-year supervised release

term shortly thereafter. He was later deported.

      In 2018, authorities charged Lopez-Alvarado with additional violations.

First, in March 2018, the probation office sought to have him arrested, alleging, in

part, that he had returned to the country without permission in 2018. Proceedings

then commenced to revoke his supervised release in Lopez-Alvarado I.




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      In April 2018, a federal grand jury charged Lopez-Alvarado with: (1)

illegally being present in the United States after being deported, in violation of 8

U.S.C. § 1326(a), (b)(2) (Count 1); and (2) knowingly failing to register as a sex

offender under SORNA, in violation of 18 U.S.C. § 2250(a) (Count 2). CM/ECF

for the M.D. Fla., no. 6:18-cr-00080-PGB-KRS-1 (“Lopez- Alvarado II”). Because

Lopez-Alvarado previously had been convicted of failing to register as a sex

offender and was on federal supervised release for that conviction, the probation

office also filed a petition alleging that he had violated the conditions of his release

by illegally returning to the United States.

      Lopez-Alvarado appeared before a magistrate judge for a change of plea

hearing as to Count 2 and pled guilty; the magistrate judge recommended the

district court accept his plea. Both sides submitted notices that they had no

objections to the recommendation and the district court accepted his guilty plea to

Count 2.

      Prior to trial on Count 1, the government moved to preclude Lopez-Alvarado

from raising, as a defense, that he became a naturalized citizen by taking or signing

an allegiance oath at a naturalization interview in 1995. The district court

ultimately ruled that it would be a factual issue for the jury to decide whether it

believed Lopez-Alvarado was invited to a ceremony to take the oath, whether the

absence of immigration records indicated that never occurred, and whether he took


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the oath and became a citizen. When asked by the district court for comments,

neither side objected to the court’s ruling.

       At the jury trial, Charles Adkins, a senior immigration officer for the United

States Citizenship and Immigration Services (“USCIS”), 1 testified for the

government regarding Lopez-Alvarado’s “alien file,” also called an “A-file.”2

Adkins identified a notice to appear for removal proceedings issued to him in

August 1998; a December 1998 order from an Immigration Judge finding that

Lopez-Alvarado was removable, “ineligible for relief from removal,” and ordering

him removed to Mexico; a warrant for his removal, based on a final order from the

Board of Immigration Appeals, which demanded his physical removal from the

United States; and an execution page showing he was removed from the country

and walked across the border to Mexico on May 30, 2009. Adkins also testified

regarding another time Lopez-Alvarado entered the country and was removed, with

removal proceedings beginning around July 2012. Additionally, Adkins identified

Lopez-Alvarado’s birth certificate. Adkins testified that he searched USCIS’s

databases, which did not show that Lopez-Alvarado was ever a citizen or

naturalized, and, if he had applied for naturalization and been naturalized, the



1
 On cross-examination, Adkins testified that USCIS previously was known as the Immigration
and Naturalization Service (“INS”).
2
 An “A-file” is comprised of a whole immigration record, including an alien’s application,
enforcement documents, and anything else related to or affecting that alien’s immigration status.

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databases would have had a document reflecting such. On cross-examination,

Adkins testified that in 1995, a person applied for naturalization, afterwards they

were interviewed, and, after the interview, the application was approved, denied, or

“continued.” Adkins also testified, in part, that applicants did not take the

allegiance oath at the naturalization interview, rather only signed a document

acknowledging they understood it and, if approved to proceed to the swearing in,

an applicant received a letter telling them where and when to appear to take the

oath.

        After the government rested its case-in-chief, Lopez-Alvarado moved for a

judgment of acquittal, arguing that the government had failed to show he was an

alien; the district court denied the motion. When the district court began

discussing the proposed jury instruction for Lopez-Alvarado’s defense, Lopez-

Alvarado objected to putting any burden of proof for the defense on him; however,

he agreed with the court that he had advanced an affirmative defense.

        In his defense, Lopez-Alvarado called Ana Pardo, an Immigration and

Naturalization Service (“INS”) official from the Orlando office in 1995-96. She

testified that in the building that INS used at the time, if they conducted

naturalization ceremonies, they used the INS’s judge’s chambers. She stated that

they filled out a processing worksheet as the case was worked on and identified

Lopez-Alvarado’s 1995 application and processing form. She said that, at the


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interview, the processing sheet would be filled out with information like sex and

marriage status; the “C” in the action line of the processing sheet meant she

continued the case and she would have filled that out at the time of his interview

on December 6, 1995. She testified that an allegiance oath was not administered

during the interview, but they would give people an oath to tell the truth in their

application. The date of the final action in his case was March 12, 1996, and it was

her signature on the sheet; however, she did not have any independent recollection

of the events with Lopez-Alvarado, including denying his application. She also

testified that except for possibly military members going overseas on orders,

ceremonies did not occur right after the interview; she did not remember any

ceremonies taking place the same day as an interview, nor did she give the

allegiance oath. Pardo also described what a swearing-in ceremony conducted by

INS looked like, specifically that groups of 50 up to 1,000 would be brought in,

there would be guest speakers, often family and friends would attend, the oath

would be given, and the naturalization certificates were handed out at the end of

the ceremony.

      Lopez-Alvarado took the stand. He admitted that he was a convicted felon.

As to his 1995 application, he testified that the first time he met with an INS

official was in February 1995; at that time, Pardo questioned him under oath and

afterwards asked where he wanted to take his citizenship oath. He was told to


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come back in December 1995 to take his oath. He said when he arrived, several

officers and Pardo were present; on cross-examination, he said “many people”

were at the ceremony, but they were INS officers and, if others were there to take

the oath, he did not know because he took the oath quickly and left. He said that

after the oath was administered, officials marked where he should sign that he had

taken the oath; on cross-examination, he stated that the oath he signed was the one

on his A-file processing sheet. He also said that they did not give him a certificate

on that date; he was told he would get a notice about picking it up, but he never

picked it up for various reasons.

      After the defense rested, it renewed its motion for judgment of acquittal

based on the government’s failure to make out a prima facie case. The district

court denied the motion. It also explicitly found that Lopez-Alvarado had

committed perjury, stating “I do not find Mr. Alvarado’s testimony to be credible.

In fact, I find that he’s perjured himself.”

      At the charge conference, the court stated that it wanted to make it clear to

the jury that the government did not have to disprove that the naturalization

ceremony took place, it only had to prove the elements of the offense; to “avoid

confusion,” it wanted to add that Lopez-Alvarado had the burden to prove his

affirmative defense. Lopez-Alvarado objected to having the burden; however, he

agreed that, if he did, it was by a preponderance of the evidence. The court


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ultimately instructed the jury that: “The Defendant has the burden of proving by a

preponderance of the evidence that he attended a public naturalization ceremony

before March 17, 2018, and took the oath of allegiance at that ceremony.” The

instructions required the government to prove his alien status beyond a reasonable

doubt.

         The jury found Lopez-Alvarado guilty of Count 1; the district court entered

a verdict to this effect in August 2018. Before scheduling a sentencing hearing in

Lopez-Alvarado II, the probation office petitioned to revoke Lopez-Alvarado’s

supervised release in Lopez-Alvarado I. Lopez-Alvarado admitted that he had

violated his conditions of release based on his recent conviction for illegal re-entry

after deportation and for violating the law while on supervised release by failing to

register under SORNA.

         Shortly thereafter, Lopez-Alvarado indicated that he wanted to withdraw his

guilty plea to Count 2 in Lopez-Alvarado II, and his admission to violating his

supervised release in Lopez-Alvarado I; this prompted defense counsel to move to

withdraw. A magistrate judge granted the motion to withdraw and appointed new

counsel, who moved to stay further proceedings in both cases until the Supreme

Court decided United States v. Gundy, 695 Fed. App’x 639 (2d Cir. 2017), cert.

granted, 138 S. Ct. 1261 (2018), a case challenging SORNA’s constitutionality

based on the non-delegation doctrine.


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      In the meantime, Lopez-Alvarado formally moved to withdraw his Count 2

guilty plea, under Federal Rule of Criminal Procedure 11(d)(2)(B). The district

court denied the motion, noting that he was convicted on May 11, 1998, of

committing a lewd act upon a minor, he was required to register under SORNA,

and he failed to do so when he returned to Florida. Lopez-Alvarado also sought to

withdraw his admission to violating his supervised release in Lopez-Alvarado I.

The court denied that motion as well.

      The district court held a sentencing proceeding and a final revocation

hearing on the same day. Based on a total offense level of 26 and a criminal

history category of IV, the court calculated Lopez-Alvarado’s guidelines range as

92 to 115 months of imprisonment. The district court found that, from his first

deportation through his current trial testimony, Lopez-Alvarado had shown “a

complete and utter disregard for the law,” and it was “not at all convinced that [he

was] mistaken in whether [he was] legally here, and the jury rejected that flatly”;

the court believed he would “continue to return and continue to violate the laws of

this country, if permitted to do so, and that is simply not acceptable.” It found the

guidelines insufficiently captured his risk to society and disregard for the law, and

it varied upward before sentencing him to 168 months as to Count 1 and 120

months as to Count 2, set to run concurrently. It imposed a five-year term of

supervised release, with three years for Count 1 and five years for Count 2, again


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served concurrently. Lopez-Alvarado’s counsel stated that “other than those

previously stated in this case, we don’t object.” For violating his terms of

supervised release, the district court announced that it was revoking his supervised

release and sentenced him to 12 months of imprisonment, concurrent to his total

sentence in Lopez-Alvarado II.

                                          II.

                                          A.

      On appeal, Lopez-Alvarado argues that SORNA constitutes an

unconstitutional delegation of Congress’s power; consequently, he should have

been permitted to withdraw his guilty plea to the SORNA charge and his admission

to violating supervised release upon his violation of SORNA. We review issues of

constitutional law de novo. United States v. Ambert, 561 F.3d 1202, 1205 (11th

Cir. 2009). We will disturb the district court’s decision to deny a defendant’s

motion to withdraw a guilty plea only upon an abuse of discretion. United States v.

McCarty, 99 F.3d 383, 385 (11th Cir. 1996). We review a district court’s

conclusion that a defendant violated terms of his supervised release for an abuse of

discretion. United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994). Issues

which a party does not “devote a discrete section of his argument to” are deemed

abandoned. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).




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      In Ambert, we concluded that Congress “provided the Attorney General with

‘intelligible principles’ in” SORNA, “a policy framework” guiding the Attorney

General’s exercise of discretion, and “constrict[ed] the Attorney General’s

discretion to a narrow and defined category.” 561 F.3d at 1213. We rejected

Ambert’s argument that SORNA violated the non-delegation doctrine because the

Attorney General determined its retroactive applicability. See id. at 1212-15.

      In Gundy v. United States, the Supreme Court considered whether SORNA’s

delegation, to the Attorney General, of the power to specify its applicability to

those convicted pre-SORNA violated the non-delegation doctrine. See Gundy v.

United States, 139 S. Ct. 2116, 2122 (2019). The Supreme Court held that this

delegation did not violate the non-delegation doctrine. See id. at 2121. Four

Justices joined the opinion and Justice Alito concurred in the judgment. See id.

at 2121, 2130-31. In his concurrence though, Justice Alito indicated that, if a

majority of the Court wished to do so, he supported reconsidering the Court’s

decades’ long approach to the non-delegation doctrine; however, he concurred with

the judgment in Gundy “because a majority is not willing to do” so. See id.

at 2130-31 (Alito, J., concurring). Justice Gorsuch, writing for the dissent,




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concluded that SORNA violated the non-delegation doctrine. 3 See id. at 2131-48

(Gorsuch, J., dissenting).

       This Court is bound by “a prior panel’s holding unless and until it is

overruled or undermined to the point of abrogation by an opinion of the Supreme

Court or of this Court sitting en banc.” United States v. Gillis, 938 F.3d 1181,

1198 (11th Cir. 2019). This “rule applies regardless of whether the later panel

believes the prior panel’s opinion to be correct . . . .” Id.

       Lopez-Alvarado has abandoned any argument aside from SORNA’s

constitutionality by not arguing it on appeal. See Jernigan, 341 F.3d at 1283 n.8.

Further, irrespective of the weight of authority Gundy should be given, Lopez-

Alvarado’s argument on this issue fails because our binding precedent remains

unaffected by Gundy and forecloses his argument that SORNA violates the non-

delegation doctrine. See Gillis, 938 F.3d at 1198; Ambert, 561 F.3d at 1212-15.

                                               B.

       Lopez-Alvarado argues that the district court erred in concluding that

whether he was a naturalized citizen and, by implication, the legality of his prior

deportations were factual questions for the jury to decide, rather than legal issues



3
 In November 2019, although concurring with the denial of certiorari in Paul v. United States,
140 S. Ct. 342 (2019), which “raise[d] the same statutory interpretation issue” in Gundy, Justice
Kavanaugh wrote that Justice Gorsuch’s opinion “may warrant further consideration in future
cases.”

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for the district court to decide. “[I]t is a cardinal rule of appellate review that a

party may not challenge as error a ruling or other trial proceeding invited by that

party.” United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005) (quoting

United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997)). This doctrine “is

implicated when a party induces or invites the district court into making an error,”

and “precludes a court from invoking the plain error rule and reversing.” Id. (first

quoting United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998); and then

quoting Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1294 (11th Cir.

2002)).

      When the doctrine is not applicable, un-objected to errors will be reviewed

under the “extremely high” plain error standard, requiring: (1) an error; (2) that is

plain or obvious; (3) which “affect[s] substantial rights in that it was prejudicial

and not harmless; and (4) the mistake [] seriously affect[ed] the fairness, integrity,

or public reputation of judicial proceedings.” Id. at 1337 n.17. Plain errors must

be “obvious” and “clear under current law.” See United States v. Lange, 862 F.3d

1290, 1296 (11th Cir. 2017) (quoting United States v. Humphrey, 164 F.3d 585,

588 (11th Cir. 1999)). “[T]here can be no plain error where there is no precedent

from the Supreme Court or this Court directly resolving it.” Id. (quoting United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)).




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      In a prosecution for illegal re-entry after deportation, under 8 U.S.C.

§ 1326(a) and (b)(2), the government must prove four elements: (1) the defendant

was an alien when he committed the offense; (2) he previously had been deported

or removed; (3) he re-entered the United States after deportation; and (4) he lacked

the Attorney General’s express consent. See United States v. Valdiviez-Garza, 669

F.3d 1199, 1201 (11th Cir. 2012).

      Section 1326 does not require, as an element, an alien’s previous deportation

be lawful, but an alien may collaterally attack the deportation under certain

circumstances. See United States v. Holland, 876 F.2d 1533, 1535-36 (11th Cir.

1989). Section 1326(d) limits an alien’s ability to collaterally attack an underlying

deportation order unless the alien meets three requirements: (1) he exhausted any

available administrative remedies to seek relief from the order; (2) the deportation

proceedings imposing the order deprived him “of the opportunity for judicial

review”; and (3) the order’s entry “was fundamentally unfair.” 8 U.S.C. § 1326(d).

Aliens have raised this collateral attack in motions to dismiss. See United States v.

Watkins, 880 F.3d 1221, 1223-24 (11th Cir. 2018); Zelaya v. Sec., Fla. Dep’t of

Corr., 798 F.3d 1360, 1363 (11th Cir. 2015), overruled in part on other grounds by

McCarthan v. Dir. of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076 (11th Cir.

2017) (en banc). In a § 1326 prosecution, a citizenship defense to the alien

element does not necessarily challenge the other elements of the offense, including


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deportation, or the legality of the deportation. See Valdiviez-Garza, 669 F.3d

at 1201-03 (holding the government was collaterally estopped from proving the

defendant was an alien in a § 1326 prosecution where, in a prior § 1326

prosecution, the defendant contested the alienage element “with evidence that he

derived United States citizenship through his father,” the principal focus of the

prior trial was the citizenship element, and alienage was necessarily determined in

his favor).

      The Supreme Court has held that the Illegal Immigration and Reform and

Immigrant Responsibility Act of 1996’s repeal of discretionary relief for aliens

convicted of certain crimes did not apply retroactively where the “convictions were

obtained through plea agreements and [for aliens] who, notwithstanding those

convictions, would have been eligible for § 212(c) relief at the time of their plea

under the law then in effect.” See INS v. St. Cyr., 533 U.S. 289, 326 (2001).

      To the extent any error occurred by the district court permitting Lopez-

Alvarado to present to the jury his defense that he took the oath of allegiance at a

public ceremony, he invited such error by arguing before the district court for the

ability to submit this defense to the jury and cannot now complain of such error.

Silvestri, 409 F.3d at 1327. Prior to witnesses testifying, Lopez-Alvarado agreed

that his defense was a factual issue and should go to the jury. Nevertheless, even

considering the merits of his argument, the district court did not err in permitting


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the jury to decide the question of his alien status. At trial, Lopez-Alvarado

presented the defense that he took the oath of allegiance at a public ceremony and

became a naturalized citizen. This defense does not inherently challenge the

legality of his prior deportations, which also requires specific proof his defense did

not provide, and a citizenship defense does appear to be a fact for a jury to decide.

See 8 U.S.C. § 1326(d); Valdiviez-Garza, 669 F.3d at 1201-03.

                                          C.

      Lopez-Alvarado argues that his citizenship defense was not an affirmative

defense, and the district court erred in shifting the burden of proof from the

government to him on this issue, violating his due process rights. “We review the

legal correctness of a jury instruction de novo, but defer on questions of phrasing

absent an abuse of discretion.” United States v. Prather, 205 F.3d 1265, 1270

(11th Cir. 2000) (citations omitted). Harmless error also applies to jury

instructions. United States v. Webb, 655 F.3d 1238, 1249 n.8 (11th Cir. 2011). We

have applied harmless error analysis to jury instructions which improperly shifted

the burden of proof on an element to the defendant. See Davis v. Kemp, 752 F.2d

1515, 1519-21 (11th Cir. 1985) (en banc) (applying harmless error analysis to jury

instruction shifting homicide malice burden of proof to defendant). An error can

be harmless if the evidence of the defendant’s guilt was overwhelming, such “that

no rational jury, properly instructed on [that] element” could have acquitted the


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defendant. See United States v. Neder, 197 F.3d 1122, 1129 & n.7 (11th Cir. 1999)

(“[H]armless-error analysis requires us to focus on whether a jury rationally could

have reached a different verdict if properly instructed . . . .”); Kemp, 752 F.2d

at 1521.

      The Due Process Clause requires the prosecution prove every element of the

offense beyond a reasonable doubt and “[t]he burden to prove or disprove an

element of the offense may not be shifted to the defendant.” United States v.

Deleveaux, 205 F.3d 1292, 1298 (11th Cir. 2000). Thus, where a defense merely

“has the effect of negating any element of the offense, the prosecution must

disprove that defense beyond a reasonable doubt.” Id. But, if “a defendant asserts

an affirmative defense that does not negate any element of the offense, the

defendant may be required to prove that defense by a preponderance of the

evidence.” Id. at 1298-99.

      As an initial matter, this issue only addresses Lopez-Alvarado’s illegal re-

entry offense, because that is the sole count he went to trial on. Further, his

defense arguably negated an element of the offense, specifically his alien status.

See Valdiviez-Garza, 669 F.3d at 1201. As the government correctly concedes that

the jury instruction impermissibly shifted the burden of proof to him, we proceed

directly to harmless error analysis.




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      Assuming error occurred, we conclude that Lopez-Alvarado is not entitled to

relief because any error was harmless, given that the government presented

overwhelming evidence of his alien status at trial. While Lopez-Alvarado testified

that he indeed attended such ceremony and took the oath, the documentary

evidence in his A-file and the testimony of Adkins and Pardo showed that this did

not occur. Adkins testified that USCIS’s databases did not show Lopez-Alvarado

ever became a naturalized citizen and identified his Mexican birth certificate. Both

Adkins and Pardo testified that applicants do not take the oath at their interview,

but merely sign the acknowledgement. Pardo testified that, at the interview,

Lopez-Alvarado’s application was “continued,” not approved, and she had

requested documents about his arrests. Both Pardo and Adkins testified to

naturalization ceremony process; Pardo described their size, and Adkins stated that

the ceremonies gathered multiple applicants, who sat and took the oath together,

the applicants received their citizen certificate that day, and that a certain form was

utilized for the ceremonies, which was not in Lopez-Alvarado’s A-file. Finally,

the jury, by convicting Lopez-Alvarado, implicitly deemed him incredible, and

may have taken the opposite of what he testified to as true, which it was entitled to

do. See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (quoting Atkins

v. Singletary, 965 F.2d 952, 961 n.7 (11th Cir. 1992)) (noting that, by choosing to




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testify, the defendant “runs the risk that if disbelieved ‘the jury might conclude the

opposite of his testimony is true’”).

       Because overwhelming evidence arguably showed that Lopez-Alvarado was

an alien, the district court’s error in improperly shifting the burden to him was

harmless,4 see Neder, 197 F.3d at 1129, 1129 n.7.

                                              D.

       Finally, Lopez-Alvarado argues that the district court erred during his

sentencing by imposing an obstruction of justice enhancement and that his

168-month total sentence is substantively unreasonable. We review a district

court’s interpretation and application of the Guidelines to the facts de novo.

United States v. Moran, 778 F.3d 942, 959 (11th Cir. 2015). However, factual

findings the district court made at sentencing are reviewed only for clear error. Id.

We have also said that, in most cases, we apply due deference when reviewing the

district court’s application of the guidelines to the facts, which is akin to clear error

review. United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). A

factual finding cannot be clearly erroneous when the factfinder chooses between

“two permissible views of the evidence.” United States v. Saingerard, 621 F.3d

1341, 1343 (11th Cir. 2010) (quoting United States v. Izquierdo, 448 F.3d 1269,


4
  We take note of the fact that the district court also included in its instructions that the
government had the burden of proving beyond a reasonable doubt that Lopez-Alvarado was an
alien.

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1278 (11th Cir. 2006)). We also give a district court’s credibility determinations

made at sentencing “substantial deference.” United States v. Plasencia, 886 F.3d

1336, 1343 (11th Cir. 2018) (quoting United States v. Clay, 483 F.3d 739, 744

(11th Cir. 2007)), cert. denied, 139 S. Ct. 837 (2019).

      We review a sentence’s reasonableness “under a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). A

court abuses its discretion when it (1) fails to consider relevant factors that were

due significant weight, (2) gives significant weight to an irrelevant or improper

factor, or (3) commits a clear error of judgment by balancing the proper factors

unreasonably. United States v. Kuhlman, 711 F.3d 1321, 1326-27 (11th Cir. 2013).

We reverse only when “left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the [18 U.S.C.] § 3553(a)

factors by arriving at a sentence that lies outside the range of reasonable sentences

dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th

Cir. 2010) (en banc) (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th

Cir. 2008)).

      Sentencing Guidelines § 3C1.1 enhances an individual’s offense level if “the

defendant willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the . . . prosecution, or sentencing of the

instant offense of conviction, and . . . the obstructive conduct related to [] the

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defendant’s offense of conviction and any relevant conduct . . . .” U.S.S.G.

§ 3C1.1. Commentary notes explain that it is not meant to punish any defendant

for exercising his constitutional right or denying guilt, unless he does so under oath

and commits perjury, and “court[s] should be cognizant that inaccurate testimony

. . . sometimes may result from confusion, mistake, or faulty memory and, thus, not

all inaccurate testimony . . . necessarily reflect[s] a willful attempt to obstruct

justice.” Id. cmt. n.2. This adjustment applies to perjury. Id. cmt. n.4.

      Perjury, under this enhancement, is “giving ‘false testimony concerning a

material matter with the willful intent to provide false testimony, rather than as a

result of confusion, mistake, or faulty memory.’” Plasencia, 886 F.3d at 1346

(quoting United States v. Bradberry, 466 F.3d 1249, 1254 (11th Cir. 2006)).

Material evidence is that, which “if believed, would tend to influence or affect the

issue under determination.” Id. (quoting U.S.S.G. § 3C1.1 cmt. n.6). District

courts should include specific findings of “each alleged instance of obstruction by

identifying the materially false statements individually,” but generally finding the

enhancement applies is sufficient “if it encompasses all of the factual predicates

necessary for a perjury finding.” United States v. Singh, 291 F.3d 756, 763 (11th

Cir. 2002) (quoting United States v. Arguedas, 86 F.3d 1054, 1059 (11th Cir.

1996); and then quoting United States v. Lewis, 115 F.3d 1531, 1538 (11th Cir.

1997)).


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      For a district court to find a defendant perjured himself four elements are

required: (1) testimony under oath; (2) which was false; (3) the testimony was

material; and (4) the testimony was “given with the willful intent to provide false

testimony and not as a result of a mistake, confusion, or faulty memory.” Id.

at 763 n.4. “With only a cold, paper record before it an appellate court is severely

hindered in evaluating whether a defendant perjured himself at trial.” United

States v. McDonald, 935 F.2d 1212, 1219 (11th Cir. 1991). By contrast, a trial

“court is uniquely situated to make such a determination because it heard all the

evidence and was able to observe a particular witness’ demeanor and behavior on

the witness stand.” See id.

      In deciding the substantive reasonableness of a sentence, we look at the

totality of the circumstances to decide whether the sentence achieves § 3553(a)’s

stated purposes. United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009).

Substantively unreasonable sentences include those where the district court relied

on any single § 3553(a) factor unjustifiably, did not consider relevant § 3553(a)

factors, or arbitrarily selected a sentence. See id. The party challenging a sentence

must show it is unreasonable in light of the § 3553(a) factors and the record.

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). District courts must

impose sentences sufficient, but not greater than necessary, to comply with

§ 3553(a)(2)’s purposes, including-the need to adequately deter criminal conduct,


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protect the public from further crimes by the defendant, and “reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense”-as well as consider the other § 3553(a) factors,

including, inter alia, the offense’s nature and circumstances and defendant’s

history and characteristics. 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C). The weight

given to each § 3553(a) factor is within the district court’s sound discretion.

Kuhlman, 711 F.3d at 1327. When considering the § 3553(a) factors, district

courts may also consider previous criminal conduct encompassed by an

enhancement. United States v. Turner, 626 F.3d 566, 574 (11th Cir. 2010).

      We do not presume that a sentence outside the guideline range is

unreasonable, but we will consider the extent of any variance and give “due

deference” to assess whether the § 3553(a) factors justified the variance’s extent.

Id. at 573-74 (quoting Gall, 552 U.S. at 51). District courts have to seriously

consider the extent of a variance and explain its propriety “in a particular case with

sufficient justifications.” See Gall, 552 U.S. at 46. The court’s justifications

“must be ‘compelling’ enough ‘to support the degree of the variance’ and complete

enough to allow meaningful appellate review,” but “an extraordinary justification”

is not required for a sentence outside the guideline range. United States v. Shaw,

560 F.3d 1230, 1238 (11th Cir. 2009) (quoting Gall, 552 U.S. at 50). A sentence




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imposed well below the statutory maximum penalty also indicates a reasonable

sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      Here, as to the enhancement, the district court adequately addressed its

perjury finding at sentencing, showing that each of the four elements were fulfilled

for a generalized perjury finding. See Singh, 291 F.3d at 763 & n.4. Lopez-

Alvarado falsely testified under oath about the naturalization ceremony and oath,

which was material because it went to the contested issue of whether he was an

alien; the district court found his testimony was intentional, willful, and not a

product of confusion via cross-examination. See Plasencia, 886 F.3d at 1346. In

light of our deference to credibility determinations at sentencing, the district

court’s decision to credit other witnesses’ testimony and apply the enhancement

was not clearly erroneous.

      Additionally, the district court also did not abuse its discretion by imposing

the 53-month upward variance. That the 168-month total sentence remained far

below the 240-month statutory maximum on Count 1 indicates its reasonableness.

See Gonzalez, 550 F.3d at 1324. Further, the three reasons the district court

identified for varying upwards—his “complete disregard for the laws” of the

country, continued violation of “the law after serving lengthy prior sentences,” and

the need to protect the public—were all supported by evidence the district court

heard at sentencing and made clear by the district court during the hearing. That


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some of the district court’s reasons may have also been encompassed in his

guideline range calculation did not prevent the court from considering them again

in a variance and it was permitted to give greater weight to certain factors. See

Kuhlman, 711 F.3d at 1327; Turner, 626 F.3d at 574.

      AFFIRMED.




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