           Case: 19-13914   Date Filed: 06/17/2020   Page: 1 of 7



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-13914
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 8:15-cr-00308-EAK-TGW-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

CESAR OSBALDO RODRIGUEZ, JR.,

                                                        Defendant-Appellant.

                      ________________________

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

                             (June 17, 2020)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      This is Rodriguez’s second appeal arising from this criminal case, in which

he pled guilty to several drug-trafficking offenses. For these offenses, Rodriguez

originally was sentenced to a total term of 180 months of imprisonment. On appeal

from that sentence, we vacated the district court’s application of an enhancement

under U.S.S.G. § 2D1.1(b)(15)(C) (2016),1 which directs a two-level increase to the

guideline offense level where “[t]he defendant was directly involved in the

importation of a controlled substance.” See United States v. Rodriguez, 780 F.

App’x 764, 768 (11th Cir. 2019). Noting that the court did not make “a factual

finding beyond that the offense involved heroin imported from Mexico,” which

alone is insufficient to show direct involvement, we remanded for the court to clarify

its grounds for applying the enhancement. Id. at 767–68. In the alternative, we

advised that “if the district court would have imposed the same sentence regardless

of its resolution of the guideline issue, given that it imposed a sentence outside the

guideline range, it may state as much and its reasons for doing so.” Id. at 768.

      On remand, the district court resentenced Rodriguez and reapplied the

importation enhancement under § 2D1.1(b)(15)(C) (2016). The court found that the

enhancement was appropriate because there was sufficient circumstantial evidence

to show an agreement to import heroin from Mexico. Alternatively, the court found

that the 180-month sentence originally imposed was “a correct and legally


      1
          This same enhancement now appears under U.S.S.G. § 2D1.1(b)(16)(C).
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appropriate sentence based upon the same evidence, regardless of the resolution of

the guideline issue.” Rodriguez now brings this second appeal, challenging the

district court’s application of the § 2D1.1(b)(15)(C) (2016) enhancement and

arguing that the court’s error in applying that enhancement was not harmless because

his sentence is procedurally and substantively unreasonable.

      We review the district court’s application of the Sentencing Guidelines de

novo and its findings of fact for clear error. United States v. Victor, 719 F.3d 1288,

1290 (11th Cir. 2013). “Clear error review is deferential, and we will not disturb a

district court’s findings unless we are left with a definite and firm conviction that a

mistake has been committed.” United States v. Cruickshank, 837 F.3d 1182, 1192

(11th Cir. 2016) (quotation marks omitted).

      Section 2D1.1(b)(15)(C) of the 2016 Sentencing Guidelines provides that,

if a defendant receives an adjustment under § 3B1.1 for an aggravating role and

“was directly involved in the importation of a controlled substance,” the base

offense level is increased by two levels.     U.S.S.G. § 2D1.1(b)(15)(C) (2016).

The commentary offers the following guidance for applying this enhancement:

      Subsection (b)(15)(C) applies if the defendant is accountable for the
      importation of a controlled substance under subsection (a)(1)(A) of
      § 1B1.3 (Relevant Conduct (Factors that Determine the Guideline
      Range)), i.e., the defendant committed, aided, abetted, counseled,
      commanded, induced, procured, or willfully caused the importation
      of a controlled substance.



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Id. § 2D1.1, cmt. n.20(B). In other words, the enhancement must be based solely

on the defendant’s own conduct, see § 1B1.3(a)(1)(A), and not on the reasonably

foreseeable acts of others in furtherance of jointly undertaken activity, see id.

§ 1B1.3(a)(1)(B).

      Rodriguez contends that the district court failed to clarify its grounds for

applying the importation enhancement and that the record does not contain a

factual basis to support this enhancement. The government responds that the

enhancement was appropriate because the evidence shows that Rodriguez aided

and abetted the importation of heroin from Mexico.

      Ultimately, however, we need not determine whether the district court

erred in applying the importation enhancement under § 2D1.1(b)(15)(C) (2016).

Under our precedent, a guideline “calculation error is harmless when a district

judge clearly states that she would impose the same sentence regardless of the

enhancement,” and the sentence would be reasonable even if the guideline issue

had been decided in the defendant’s favor. United States v. Perkins, 787 F.3d

1329, 1341 (11th Cir. 2015); United States v. Keene, 470 F.3d 1347, 1349 (11th

Cir. 2006). “Our rationale for this policy is to avoid pointless reversals and

unnecessary do-overs of sentence proceedings.” United States v. McLellan, 958

F.3d 1110, 1116 (11th Cir. 2020) (quotation marks omitted).




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      Here, any error in applying the importation enhancement was harmless

because the district court expressly stated that it would have imposed the same

sentence regardless of its resolution of this guideline issue, and the 180-month

sentence would be reasonable even if the guideline issue had been resolved in

Rodriguez’s favor. See Keene, 470 F.3d at 1349.

      In evaluating the substantive reasonableness of a sentence, we consider the

totality of the circumstances and whether the sentence achieves the goals of

sentencing set out in 18 U.S.C. § 3553(a). United States v. Sarras, 575 F.3d 1191,

1219 (11th Cir. 2009). We will defer to the district court’s judgment in weighing

the § 3553(a) factors unless the court made “a clear error of judgment” and imposed

“a sentence that lies outside the range of reasonable sentences dictated by the facts

of the case.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)

(quotation marks omitted).

      Rodriguez’s total sentence of 180 months of imprisonment is

substantively reasonable. If the two-level importation enhancement did not

apply, Rodriguez’s total offense level would have been 32 and his resulting

guideline range would have been 168 to 210 months of imprisonment instead of

210 to 262 months. Rodriguez’s sentence was within the lower guideline range,

“so we expect [it] to be reasonable.” United States v. Dixon, 901 F.3d 1322,

1351 (11th Cir. 2018) (quotation marks omitted). It was also well below the


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statutory maximum of life imprisonment that applied to two counts, which is

another indicator of reasonableness. United States v. Nagel, 835 F.3d 1371,

1377 (11th Cir. 2016) (“The sentence is also significantly less than the applicable

statutory maximum of life in prison, which points strongly to reasonableness.”).

      The reasonableness of the sentence is also supported by the facts of the

case and the 18 U.S.C. § 3553(a) sentencing factors. Rodriguez was a leader in

a drug-trafficking organization that distributed large quantities of heroin. He

also had several prior drug-trafficking convictions, and the presentence

investigation report indicates that Rodriguez began the drug-trafficking

activities in this case not long after he was released from state prison on a ten-

year sentence for trafficking in heroin. Based on the offense conduct and

Rodriguez’s criminal history and personal characteristics, we cannot say that the

sentence “lies outside the range of reasonable sentences dictated by the facts of

the case.” Gonzalez, 550 F.3d at 1324.

      Rodriguez maintains that the district court failed to adequately explain its

decision at resentencing to deviate from its original decision to vary downward

from the low end of the guideline range by 30 months. But we have rejected the

argument that “when the only change between initial sentencing and

resentencing is a decrease in the advisory guidelines range, the district court

must decrease the defendant’s sentence.” United States v. Rosales-Bruno, 789


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F.3d 1249, 1258 (11th Cir. 2015). And the record here shows that “the district

court thought that the appropriate sentence in view of all of the facts and

circumstances” was 180 months, regardless of its resolution of the importation

enhancement. Id. The court’s explanation is sufficient to allow for meaningful

review. See Gall v. United States, 552 U.S. 38, 50–51 (2007); Rita v. United

States, 551 U.S. 338, 356–58 (2007).

     For these reasons, we affirm Rodriguez’s 180-month sentence.

     AFFIRMED.




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