              Case: 19-10117    Date Filed: 08/06/2019   Page: 1 of 4


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-10117
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 0:18-cr-60062-WPD-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

RICKEY MINCEY,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (August 6, 2019)

Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:

      Rickey Mincey appeals his 120-month sentence, challenging the district

court’s ruling that he was a career offender under United States Sentencing
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Guidelines § 4B1.1. He argues the district court improperly calculated his

guideline range by concluding one of his prior offenses qualified as a conviction

for career offender status under § 4B1.1(b)(3). After careful review, we affirm.

                                         I.

      Mincey pled guilty to one count of taking money by force or intimidation

from a financial institution insured by the Federal Deposit Insurance Corporation

in violation of 18 U.S.C. § 2113(a). The Presentence Investigation Report (“PSR”)

calculated a guideline range of 151 to 188 months, in part because Mincey had at

least two prior convictions of crimes of violence or controlled substances offenses.

At sentencing, Mincey objected to the PSR’s calculation of his guideline range,

arguing that one of his two prior offenses did not qualify as a conviction under

§ 4B1.1 because adjudication was withheld for it. He explained that if only one of

his prior offenses qualified, his guideline range would have been between 77 and

96 months. The district court overruled Mincey’s objection and determined that

his guideline range was 151 to 188 months.

      The district court ultimately sentenced Mincey to a below guideline-range

term of 120-months imprisonment. Considering the factors under 18 U.S.C.

§ 3553(a), the district court balanced Mincey’s mental health along with his prior

offenses and the need to protect the public. The district court explained that

“whichever way the guidelines are scored, . . . the appropriate sentence is 120

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months in prison” given, among other things, Mincey’s mental health and past

offenses. After making this finding, the district court imposed a sentence of 120-

months imprisonment with three years of supervised release. This is Mincey’s

appeal.

                                           II.

      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. United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). The

defendant has the burden of establishing the sentence he received would be

unreasonable even if the district court had decided the guidelines issue in his favor.

Id. at 1350. We review the substantive reasonableness of a sentence under a

deferential abuse-of-discretion standard. United States v. Irey, 612 F.3d 1160,

1186 (11th Cir. 2010) (en banc).

                                          III.

      On appeal, Mincey argues the district court “erred when it ruled that [he]

qualified as a career offender based upon a 2009 Florida case where he pled no

contest, had adjudication withheld, and was sentenced to a term of probation.” He

contends that under United States v. Baptiste, 876 F.3d 1057 (11th Cir. 2017), a no

contest plea and withholding of adjudication in Florida state court count as

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diversionary dispositions rather than prior sentences for calculating criminal

history points under the guidelines. See id. at 1062. As a result, Mincey says the

district court erred in calculating his guideline range.

      We need not decide whether Mincey is right that the district court erred in

calculating his guideline range. “[W]here the district court imposes a reasonable

sentence and states that it would impose the same sentence irrespective of any

sentencing calculation errors, this Court will uphold the sentence rather than send

the case back to the district court since it has already told us that it would impose

exactly the same sentence.” United States v. Dean, 517 F.3d 1224, 1232 (11th Cir.

2008) (quotation marks omitted). In sentencing Mincey, the district court stated

that regardless of its calculation of Mincey’s guideline range, “the appropriate

sentence is 120 months in prison.” The district court therefore explained it would

have imposed the same sentence regardless of its guidelines calculation. See id.;

Keene, 470 F.3d at 1349–50. And because Mincey does not challenge the

substantive reasonableness of his sentence, there is no reversible error. See Keene,

470 F.3d at 1350 (holding that “the burden is on the defendant to prove that his

sentence is unreasonable in light of the record and § 3553(a)” factors). We affirm

Mincey’s sentence.

      AFFIRMED.




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