             Case: 12-16474     Date Filed: 09/10/2013   Page: 1 of 10


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-16474
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:12-cr-20406-MGC-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

HERIBERTO ORTIZ,

                                                               Defendant-Appellant.

                           ________________________

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

                               (September 10, 2013)

Before CARNES, Chief Judge, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

      Heriberto Ortiz appeals his concurrent 240-month sentences for one count of

conspiring to possess with intent to distribute over five kilograms of cocaine
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(Count 1), in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii); and one count

of conspiracy to interfere with commerce by robbery (Count 3), in violation of 18

U.S.C. § 1951(a), (b)(1), (b)(3). On appeal, Ortiz argues that the district court

erred in treating his 2006 felony conviction for using a vehicle to flee and elude a

police officer as a predicate offense for application of the career offender

sentencing guidelines. He also argues that his 240-month total sentence, which

represents a 22-month downward variance from the advisory guideline range, was

substantively unreasonable.

              I. Whether Ortiz’s Prior Conviction is a Crime of Violence

      We review de novo whether a particular prior conviction is a crime of

violence under the career offender guidelines. United States v. Lockley, 632 F.3d

1238, 1240 (11th Cir.), cert. denied, 132 S.Ct. 257 (2011). “The law of this circuit

is ‘emphatic’ that only the Supreme Court or this court sitting en banc can

judicially overrule a prior panel decision.” Cargill v. Turpin, 120 F.3d 1366, 1386

(11th Cir. 1997).

      A defendant is a “career offender” if, among other requirements, at the time

of his instant offense of conviction he had “at least two prior felony convictions of

either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).

Under the career offender guidelines, a “crime of violence” is one that

      (1)    has as an element the use, attempted use, or threatened use of
             physical force against the person of another, or

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      (2)    is burglary of a dwelling, arson, or extortion, involves the use
             of explosives, or otherwise involves conduct that presents a
             serious potential risk of physical injury to another.

Id. § 4B1.2(a)(1)–(2); see United States v. Chitwood, 676 F.3d 971, 975 (11th

Cir.), cert. denied, 133 S.Ct. 288 (2012) (stating that a crime of violence must fit

into one of three categories: crimes covered under the “elements clause” of

§ 4B1.2(a)(1), the “enumerated crimes clause” of § 4B1.2(a)(2), or the “residual

clause” crimes of § 4B1.2(a)(2)). Because the Armed Career Criminal Act

(ACCA) provides a definition of a “violent felony” that is virtually identical to the

definition of a crime of violence under the career offender guidelines, we have

indicated that “decisions about one apply to the other.” Gilbert v. United States,

640 F.3d 1293, 1309 n.16 (11th Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1001

(2012).

      We apply a categorical approach in determining whether a prior conviction

is a crime of violence for purposes of the career offender guidelines. Lockley, 632

F.3d at 1240. In applying the categorical approach to the residual clause, we ask

whether the offense at issue inherently “poses a serious potential risk of physical

injury that is similar in kind and in degree to the risks posed by the enumerated

crimes.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012) (quotation

omitted); see Chitwood, 676 F.3d at 977 (looking “only to the fact of conviction

and the statutory definition of the prior offense, and not to the particular facts

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disclosed by the record of conviction” (quotation omitted)). We examine the

underlying facts of a conviction “only if ambiguities in the [judgment] make the

crime of violence determination impossible from the face of the judgment itself.”

Lockley, 632 F.3d at 1240 (quotation omitted).

      Florida has three different subsections covering the use of a vehicle to flee or

elude a police officer. Fla. Stat. § 316.1935(1) provides:

      It is unlawful for the operator of any vehicle, having knowledge that
      he or she has been ordered to stop such vehicle by a duly authorized
      law enforcement officer, willfully to refuse or fail to stop the vehicle
      in compliance with such order or, having stopped in knowing
      compliance with such order, willfully to flee in an attempt to elude the
      officer, and a person who violates this subsection commits a felony of
      the third degree . . . .

Fla. Stat. § 316.1935(1) (2006). Section 316.1935(2) provides:

      Any person who willfully flees or attempts to elude a law enforcement
      officer in an authorized law enforcement patrol vehicle, with agency
      insignia and other jurisdictional markings prominently displayed on
      the vehicle, with siren and lights activated commits a felony of the
      third degree . . . .

Id. § 316.1935(2) (2006); see United States v. Petite, 703 F.3d 1290, 1292 (11th

Cir. 2013) (describing an offense under § 316.1935(2) as “simple vehicle flight”),

pet. for cert. filed, (U.S. June 13, 2013) (No. 12-10831). Simple vehicle flight is a

lesser included offense of the next subsection covering fleeing and eluding police

officers, Fla. Stat. § 316.1935(3), which applies to defendants who flee from law

enforcement “at high speed, or in any manner which demonstrates a wanton


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disregard for the safety of persons or property,” and punishes such conduct as a

second- or first-degree felony, depending on the facts of the case. Fla. Stat.

§ 316.1935(3)(a); see Petite, 703 F.3d at 1292–93 (referring to an offense under

§ 316.1935(3) as “aggravated vehicle flight”).

      In United States v. Sykes, ___ U.S. ___, 131 S. Ct. 2267, 180 L.Ed.2d 60

(2011), the United States Supreme Court declared that Indiana’s prohibition

against vehicle flight from a police officer was categorically a violent felony under

the ACCA. Id. at ___, 131 S. Ct. at 2273. The Supreme Court concluded that

vehicle flight from the police inherently poses a risk of violence similar to robbery

or arson, and in so holding settled a circuit split. See id. at ___, 131 S. Ct. at 2272–

74. In her dissent, Justice Kagan lamented the majority opinion’s inclusion of all

forms of violating the statute into its holding; the Court held that all forms of the

Indiana statute, from simple to aggravated, were violent felonies. Id.at __, 131 S.

Ct. at 2288.

      In Petite, we held that a Florida conviction under § 316.1935(2) is

categorically a violent felony under the ACCA because there is an inherent risk of

violence in using a vehicle to flee and elude a police officer. Petite, 703 F.3d at

1296, 1300–01. Using a vehicle to flee shows a “determination to elude capture,”

in defiance of law enforcement, that “makes a lack of concern for the safety of

property and persons of pedestrians and other drivers an inherent part of the


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offense.” Sykes, ___ U.S. at ___, 131 S.Ct. at 2273. Beyond posing serious and

substantial risks, we also determined that the risks posed by simple vehicle flight

are similar in degree of danger to the risks of arson and burglary. Petite, 703 F.3d

at 1295–96; Sykes, ___ U.S. at ___, 131 S.Ct. at 2274 (noting that vehicle flight

actually “presents more certain risk as a categorical matter than burglary”).

Accordingly, we stated that “any form of intentional vehicle flight from a police

officer presents powerful risks comparable to those presented by arson and

burglary.” Petite, 703 F.3d at 1296 (emphasis in original).

      Although a copy of the judgment for Ortiz’s 2006 conviction is not in the

record, Ortiz has consistently maintained, both at the sentencing hearing and on

appeal, that he was convicted under § 316.1935(1). Moreover, the Government

stated to the district court that the judgment reflects a conviction under

§ 316.1935(1). The Government’s brief on appeal makes inconsistent statements

as to whether Ortiz was convicted under § 316.1935(1) or § 316.1935(2), but the

references to § 316.1935(2) seem to be based on the fact that Ortiz was charged

with (rather than convicted of) a violation of § 316.1935(2). Ortiz’s conviction

appears to be under Fla. Stat. § 316.1935(1).

      The district court did not err in treating Ortiz’s prior vehicle flight

conviction under § 316.1935(1) as a categorical crime of violence under the career

offender guidelines. We think that the this Court’s previous determination that a


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violation of Fla. Stat. § 316.1935(2) is a violent felony under the ACCA applies

here because we held that any type of vehicle flight inherently poses the same sort

of risks as the enumerated crimes. Petite, 703 F.3d at 1301; see Gilbert, 640 F.3d

at 1309 n.16. Ortiz has advanced no reason why a conviction under § 316.1935(1)

does not pose these same inherent risks. Indeed, Sykes explains that a defendant

who defies a police officer by fleeing in a car commits a violent felony, even if the

defendant is not going at full speed, because he “creates the possibility that police

will, in a legitimate and lawful manner,” match the defendant’s speed or use force

to retrieve him. Sykes, ___ U.S. at ___, 131 S. Ct. at 2273. A violation of Fla.

Stat. § 316.1935(1), which prohibits willfully refusing or failing to stop a vehicle

or, after stopping, fleeing and eluding an officer, creates the same possibilities and

poses the same inherent dangers. See Fla. Stat. § 316.1935(1).

      Ortiz urges us to consider the different punitive schemes established in Fla.

Stat. § 316.1935 as evidence that a conviction under § 316.1935(1), which could

carry a less severe penalty than convictions under other subsections, is not

categorically a crime of violence. However, we have already determined that the

tiered punitive schemes provided for in Fla. Stat. § 316.1935 are not relevant in

determining whether a vehicular fleeing and eluding conviction is a violent felony

under the ACCA. See Petite, 703 F.3d at 1300-01; see also Sykes, ___ U.S. at ___,

131 S.Ct. at 2273. What is relevant is whether the offense at issue “nonetheless


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poses a substantial risk of physical injury.” Petite, 703 F.3d at 1300. Having

concluded that Ortiz’s conviction under Fla. Stat. § 316.1935(1) poses the same

sort of risks as those discussed in Petite and encompassed under the definition of

“crime of violence,” our decision is not affected by a gradient of possible penalties

for fleeing and eluding the police. See Petite, 703 F.3d at 1301. To the extent that

Ortiz urges us to overturn Petite, we may not oblige. See Cargill, 120 F.3d at 1386

(stating that only the Supreme Court or an en banc decision of this Court will

overrule a panel decision).

          II. Whether Ortiz’s Sentence is Substantively Unreasonable

      We review the substantive reasonableness of a sentence using a deferential

abuse of discretion standard. United States v. Irey, 612 F.3d 1160, 1165 (11th Cir.

2010) (en banc). We will vacate the sentence “if, but only if, we are left with the

definite and firm conviction that the district court committed a clear error judgment

in weighing the § 3553(a) factors by arriving at a sentence that lies outside the

range of reasonable sentences dictated by the facts of the case.” Id. at 1190

(quotation omitted). We will not “set aside a sentence merely because we would

have decided that another one is more appropriate,” because the district court’s

sentence need only be “a reasonable one.” Id. at 1191. The party challenging the

sentence bears the burden of showing it to be unreasonable in light of the record




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and § 3553(a) factors. United States v. Langston, 590 F.3d 1226, 1236 (11th Cir.

2009).

      The district court must issue a sentence “sufficient, but not greater than

necessary,” to comply with the purposes of 18 U.S.C. § 3553(a)(2). 18 U.S.C.

§ 3553(a). These purposes include the need for a sentence to reflect the

seriousness of the offense, promote respect for the law, provide just punishment,

deter criminal conduct, and protect the public from future criminal conduct. Id.

§ 3553(a)(2). Additional considerations include the nature and circumstances of

the offense, the history and characteristics of the defendant, the applicable

guideline range, and the pertinent policy statements of the Sentencing

Commission. Id. § 3553(a)(1), (3)–(7). The “weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district court.”

United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).

      Sentences that fall within the guideline range are not automatically

presumed to be reasonable, but we ordinarily expect such sentences to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Whether a

given sentence is lower than the statutory maximum may be an indicator of

reasonableness. United States v. Valnor, 451 F.3d 744, 751–52 (11th Cir. 2006).

      Ortiz has not demonstrated that his sentences were substantively

unreasonable in light of all the § 3553(a) factors. His total sentence of 240 months


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was below the guideline range and, though reflecting the 20-year statutory

maximum term of imprisonment for Count 3, was well below the life sentence

authorized for Count 1. See 18 U.S.C. § 1951(a); 21 U.S.C. § 841(b)(1)(A)(ii);

Hunt, 526 F.3d at 746; Valnor, 451 F.3d at 751–52. Ortiz’s total sentence meets

the goals encompassed by § 3553(a). Ortiz was preparing to rob what he thought

was a cocaine stash house, a robbery that, unbeknownst to him, was staged by law

enforcement. On the way to the robbery, Ortiz’s associate was shot and killed by

law enforcement after failing to obey their commands. Although Ortiz argues that

a larger downward variance was warranted because his crime did not involve an

actual stash house or actual drugs, he did not have any weapons when arrested, and

because the only act of violence was committed by law enforcement, the district

court’s conclusion to the contrary is reasonable. After considering the § 3553(a)

factors, the district court concluded that while Ortiz’s conviction for simple vehicle

flight did qualify as a crime of violence, the guideline range overstated Ortiz’s

actual criminal history, and accordingly granted a 22-month downward variance

from the low end of the guideline range. Ortiz has not carried his burden to show

that the district court’s sentencing decision represents a clear error of judgment.

See Irey, 612 F.3d at 1190.

      After review of the parties’ briefs and the record on appeal, we affirm.

      AFFIRMED.


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