                                                    [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                            No. 04-11152                MAY 5, 2005
                        Non-Argument Calendar         THOMAS K. KAHN
                      ________________________            CLERK


                  D.C. Docket No. 01-14019-CR-KMM

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

     versus

RAMIRO RAMOS,
a.k.a. “EL CHAGAN,” etc.,
d.b.a. “R&A HARVESTING,”

                                              Defendant-Appellant.
_______________________________________________________________
                    ________________________

                            No. 04-12923
                      ________________________

                  D.C. Docket No. 01-14019-CR-KMM

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

     versus

JUAN RAMOS,
a.k.a. NENO, etc.,
d.b.a. R&A HARVESTING, etc.,

                                                          Defendant-Appellant.

                         __________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                        _________________________
                                (May 5, 2005)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      This is the second time this case has been before this Court. In the first

appeal, this Court vacated two of the four convictions of defendants Ramiro

Ramos and Juan Ramos and vacated their 147-month sentences. On remand, the

district court sentenced both defendants to 60 months’ imprisonment on count 1

and 120 months’ imprisonment on count 4. In this appeal, the defendants

challenge their new sentences. After review, we affirm.

                               I. BACKGROUND

A.    Trial Evidence

      The defendants are brothers who used threats to prevent migrant workers

from leaving their employment, housed the migrant workers in abysmal

conditions, kept the migrant workers under surveillance, and kept the migrant

                                         2
workers in debt for the duration of the harvesting season. Further, the defendants

assaulted Jose Martinez, the owner of a transportation service for migrant farm

workers, with the intent of inducing Martinez not to transport migrant farm

workers out of Lake Placid, Florida.

      At the defendants’ trial, Martinez and Alejandro Benitez, an employee of

Martinez, testified about the assault. Further, three migrant workers testified as to

their living conditions.

      On June 26, 2002, a jury convicted both defendants of: conspiracy to violate

the laws of the United States by keeping migrant workers in involuntary servitude,

in violation of 18 U.S.C. § 371 (count 1); interference with commerce through

extortion by threats or violence, in violation of 18 U.S.C. §§ 1951 and 2 (count 2);

use of a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924 and 2

(count 3); and harboring illegal aliens from January 1, 2000, to June 20, 2001, in

violation of 8 U.S.C. § 1324 and 18 U.S.C. § 2 (count 4).

B.    The First Sentencing and Appeal

      After the trial, the district court sentenced both defendants to three

concurrent 63-month terms of imprisonment on counts 1, 2, and 4, and to a

consecutive 84-month sentence as to count 3, for a total of 147 months’

imprisonment.

                                          3
       In their first appeal, the defendants raised several challenges to their

convictions and sentences. Specifically, the defendants argued that: (1) their

convictions for offenses based on extortion were invalid under Scheidler v.

National Organization for Women, Inc., 537 U.S. 393, 123 S. Ct. 1057 (2003)

because they did not obtain any property during the commission of their offenses;1

(2) the prosecutor engaged in misconduct during its opening statement; and (3)

certain evidence introduced by the government was untimely and inadmissible.

       This Court rejected the defendants’ evidentiary and prosecutorial

misconduct arguments. However, we determined that because the defendants had

not obtained any property during the commission of their offenses, an element of

extortion had not been met pursuant to Scheidler. Accordingly, we vacated both

defendants’ convictions and sentences on counts 2 and 3 in full, and also their

convictions and sentences on count 1, to the extent the conspiracy alleged in count

1 relied on extortion. United States v. Ramos, No. 02-16478, at 7 (11th Cir. Sept.

26, 2003).

       We noted, however, that the defendants still had valid convictions for: (1)

conspiracy to violate the laws of the United States by keeping migrant workers in


       1
         In Scheidler, the Supreme Court held that extortion under 18 U.S.C. § 1951 (The Hobbs
Anti-Racketeering Act) requires that a person must actually obtain property from another party. 537
U.S. at 404, 123 S. Ct. at 1065.

                                                4
involuntary servitude (count 1); and (2) harboring illegal aliens (count 4). We

thus remanded for resentencing on these convictions.

C.     Resentencing

           On remand, the district court ordered revised PSIs for both defendants.

After grouping the offenses, the PSIs determined that the count producing the

highest offense level was count 1, the conspiracy to commit involuntary-servitude

offense. The Guideline for that offense is U.S.S.G. § 2H4.1(a)(1), which sets the

base offense level at 22.2

           In addition, § 2H4.1(b)(4)(B) increases that base offense level if “any other

felony offense” was committed during the involuntary-servitude offense and the

offense level for that other felony offense is greater. Specifically, § 2H4.1(b)(4)

provides:

       (4)      If any other felony offense was committed during the commission of,
                or in connection with, the peonage or involuntary servitude offense,
                increase to the greater of:
                (A) 2 plus the offense level as determined above, or
                (B) 2 plus the offense level from the offense guideline
                       applicable to that other offense, but in no event greater
                       than level 43.



       2
        The applicable Guideline for conspiracy, § 2X1.1, refers to the substantive offense. In this
case, the substantive offense is involuntary servitude, in violation of 18 U.S.C. § 1584. The
Guideline for a § 1584 offense is § 2H4.1(a)(1). All citations are to the 2002 version of the
Guidelines.

                                                 5
U.S.S.G. §§ 2H4.1(b)(4)(A)-(B) (emphasis added). In addition to their

involuntary-servitude offense, the defendants were convicted of another felony:

harboring illegal aliens in violation of 8 U.S.C. § 1324. The PSI indicated that the

offense level for this other felony – harboring illegal aliens – was higher and thus

controlled the offense level for the involuntary-servitude offense.

      While U.S.S.G. § 2L1.1 sets the base offense level at 12 for harboring

illegal aliens, the PSI recommended a nine-level enhancement under §

2L1.1(b)(2)(C) because the defendants’ harboring-illegal-aliens offense involved

more than 100 aliens; a four-level enhancement under § 2L1.1(b)(4)(B) because

the defendants brandished a firearm during the May 27, 2000 assault on Martinez;

and a six-level enhancement under § 2L1.1(b)(6)(3) because Martinez sustained

permanent bodily injury. Accordingly, the PSI recommended: (1) an offense level

of 31 for the harboring-illegal-aliens offense (12+9+4+6); and (2) an offense level

of 33 for the involuntary-servitude offense (two plus the offense level of 31 from

the harboring-illegal-aliens offense). See U.S.S.G. § 2H4.1(b)(4)(B).

      The PSI also recommended a two-level enhancement for Ramiro Ramos for

obstruction of justice. Thus, Ramiro Ramos’s total offense level was 35 and Juan

Ramos’s total offense level was 33. Both defendants had a criminal history

category of I.

                                          6
       At resentencing, the district court adopted the Guidelines calculations in the

PSI. Further, the district court accepted the government’s argument that the trial

evidence showed that both defendants were leaders of the organization and

deserved leadership role enhancements. The four-level leadership-role

enhancement resulted in a total offense level of 39 for Ramiro Ramos and 37 for

Juan Ramos. Thus, Ramiro Ramos’s Guidelines range was 262-327 months’

imprisonment, and Juan Ramos’s Guidelines range was 210-262 months’

imprisonment.

       Ultimately, the district court sentenced both defendants to only 60 months’

imprisonment on the involuntary-servitude offense and 120 months’ imprisonment

on count 4 to run consecutively, for a total of 180 months’ imprisonment. The

sentences were based on the statutory maximums for each offense.3

       The defendants timely appealed.

                                   II. DISCUSSION

A.     Application of § 2H4.1(b)(4)(B)

       The defendants’ principal argument is that the district court incorrectly

applied §§ 2H4.1(b)(4)(B) and 2L1.1 in sentencing them. The defendants do not


       3
       The statutory maximum for the involuntary-servitude offense is 60 months’ imprisonment.
18 U.S.C. § 371. The statutory maximum for the harboring-illegal-aliens offense is 120 months’
imprisonment. 8 U.S.C. § 1324(a)(2).

                                              7
challenge that the trial evidence showed that they assaulted and threatened

Martinez on May 27, 2000 with firearms. Instead, the defendants primarily argue

that the assault on Martinez, including the use of firearms, was not connected to

their harboring-illegal-aliens offense and should not be used to enhance their

sentences. They also argue that the district court erred in determining that the

injury Martinez sustained during the assault was “permanent” for purposes of §

2L1.1(b)(6)(3), and that the defendants harbored more than 100 illegal aliens.4

       During the sentencing hearing, the district court found that the trial evidence

showed that the assault was part of the defendants’ offenses. Further, the district

court determined that the trial evidence showed that the defendants harbored more

than 100 illegal aliens and that Martinez’s injury was permanent. We recount

some of the trial evidence.

       As to the May 27, 2000 assault, the trial evidence indicated that the

defendants approached vans owned by Martinez and threatened to kill Marcos

Orozco, a van driver. The defendants also threatened Alejandro Benitez, another

van driver. Further, the defendants repeatedly hit Martinez with a gun, kicked him


       4
         The defendants made these same objections at sentencing. During the sentencing hearing,
the district court overruled the defendants’ objections. This Court reviews the district court’s
application of the Guidelines de novo and its factual findings for clear error. United States v. Grant,
397 F.3d 1330, 1332 (11th Cir. 2005).


                                                  8
until he lost consciousness, and accused him of “taking away” their “people.”

Moreover, the defendants vandalized the vans that Martinez used to transport

migrant workers, and Ramiro Ramos threatened to kill Martinez.

      The offenses that gave rise to the charges in counts 1 and 4 occurred from

January 2000 to June 2001. The May 27, 2000 altercation with Martinez occurred

during that time and the trial evidence showed that it was committed in order to

induce Martinez to stop transporting migrant workers outside of their area because

they felt Martinez’s business threatened their efforts to harbor illegal aliens. We

thus conclude that the district court did not clearly err in finding that the assault on

Martinez was connected to defendants’ harboring-illegal-aliens offense.

      The district court also did not clearly err in finding that the defendants

harbored substantially more than 100 aliens. The trial testimony of the Social

Security Administration and Border Patrol agents was sufficient to support that

fact-finding. Specifically, at trial, an agent with the Social Security

Administration testified that based on the I-9 forms submitted by the defendants

for the period from January 1, 2000 through June 30, 2001, only sixteen of their

approximately 680 workers had valid social security numbers. Further, an agent

from the United States Border Patrol testified that the I-9 forms submitted by the

defendants reflected that only ten of the workers had valid alien registration

                                           9
numbers, an eight-digit number assigned to individuals lawfully admitted to the

United States for permanent residence.

       Finally, at trial, Martinez also testified that as a result of the injuries

received during the altercation, he sustained a scar from his hairline to the bridge

of his nose and a permanent scar on his lip. The permanency of Martinez’s scar is

sufficient to classify his injury as a permanent or life-threatening bodily injury.5

See United States v. Torrealba, 339 F.3d 1238, 1246 (11th Cir. 2003), cert. denied,

540 U.S. 1207, 124 S. Ct. 1481 (2004) (“[T]he plain language of application note

1[(g)] encompasses injuries that may not be terribly severe but are permanent,

hence the disjunctive: ‘permanent or life-threatening injuries.’” (internal quotation

marks and citation omitted)).

       Accordingly, the district court did not err in calculating the defendants’

sentences under §§ 2H4.1(b)(4)(B) and 2L1.1.6

       5
        The Guidelines define permanent or life-threatening bodily injury as an “injury involving
a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ,
or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be
permanent.” U.S.S.G. § 1B1.1 cmt. n.1(g).
       6
         The entire briefing on appeal as to Juan Ramos was completed on November 1, 2004. On
March 11, 2005, Juan Ramos filed a motion for leave to file a supplemental brief to raise
constitutional issues about his sentencing enhancements pursuant to United States v. Booker, 543
U.S. __, 125 S. Ct. 738 (2005). While Juan Ramos’s initial brief on appeal challenged the
sufficiency of the evidence as to his enhancements and whether § 2H4.1(b)(4)(B) was an applicable
guideline, it did not raise any constitutional issues about those enhancements or the Guidelines even
though Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004) was decided on June 24, 2004,
well prior to the filing of Juan Ramos’s brief. Because Juan Ramos did not raise any constitutional

                                                 10
B.     Vindictive Sentencing

       Relying on North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072 (1969),

the defendants contend that the district court’s decision to impose a harsher

sentence than it did originally gives rise to a presumption that the court acted

vindictively, and that the district court failed to articulate reasons for imposing the

longer sentence that are sufficient to rebut that presumption, thus establishing a

violation of their due process rights.7 We disagree.


issues in his initial brief, we deem those issues abandoned. See United States v. Dockery, 401 F.3d
1261, 1262 (11th Cir. 2005) (declining to consider Booker issue when defendant failed to timely
raise it in his initial brief); United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (“Defendant
abandoned the [Apprendi] indictment issue by not raising the issue in his initial brief.”); see also
United States v. Levy, 379 F.3d 1241, 1242 (11th Cir. 2004), petition for cert. filed, March 1, 2005
(No. 04-8942) (declining to consider Blakely issue raised for the first time in petition for rehearing).
Accordingly, we deny Juan Ramos’s March 11, 2005 motion for leave to file a supplemental brief
to raise new issues.
         We also point out that the defendants did not raise any constitutional issues under the Sixth
Amendment in the district court and thus at most we would review the defendants’ Booker issues
for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), petition for cert.
filed, February 23, 2005 (73 U.S.L.W. 3531). Even if the defendants could show error that was
plain, they would be unable to satisfy the third prong of plain-error review. As discussed above, the
district court’s fact-findings were not clearly erroneous and supported the defendants’ enhancements.
The Booker error is not the use of extra-verdict enhancements, but “the use of extra-verdict
enhancements to reach a guidelines result that is binding on the sentencing judge. . . .” Id. at 1301.
Nothing in the record indicates that the defendants’ sentences would have been different under an
advisory Guidelines scheme. In fact, the 60- and 120-month sentences were the result of the
statutory maximums for their offenses, and those maximums were below even the low end of the
applicable Guidelines ranges, which were 262-327 months’ imprisonment for Ramiro Ramos and
210-262 months’ imprisonment for Juan Ramos.
       7
         In Pearce, the Supreme Court held that if a more severe sentence is imposed following
appeal, the reasons for the harsher sentence must appear on the record and must be “based upon
objective information concerning identifiable conduct on the part of the defendant occurring after
the time of the original sentencing proceeding.” 395 U.S. at 726, 89 S. Ct. at 2081. In Alabama v.
Smith, 490 U.S. 794, 109 S. Ct. 2201 (1989), the Supreme Court clarified the Pearce doctrine by

                                                  11
       First, as determined above, at resentencing the district court properly

determined the defendants’ Guidelines calculations. In the original sentencing,

when the probation office applied § 2H4.1, the Guideline for involuntary

servitude, it incorrectly cross-referenced the Guideline applicable to extortion

instead of the higher Guideline in § 2L1.1 for harboring illegal aliens. Although

we are not excusing the incorrect calculations that were used at the first

sentencing, we do not attribute the correct application of § 2H4.1 at resentencing

to vindictiveness. See United States v. Edwards, 225 F.3d 991, 993 (8th Cir.

2000) (“[T]here is no indication of vindictiveness in resentencing a defendant to

exactly the sentence that the defendant would have received but for the erroneous

application of [the Guidelines].”); United States v. Duso, 42 F.3d 365, 369 (6th

Cir. 1994) (“If the district judge errs in favor of the defendant, however, the

defendant bears the risk that the error may be corrected against the defendant’s

favor [on resentencing].”).8

explaining that the presumption of vindictiveness applies only where there is a “reasonable
likelihood” that the increase in the sentence is the product of actual vindictiveness, and if the
presumption does not apply, the defendant must prove actual vindictiveness. Smith 490 U.S. at 799,
109 S. Ct. 2204-05.

       8
        At resentencing, the district court also correctly applied the obstruction-of-justice and
leadership-role enhancements. The obstruction-of-justice and leadership-role enhancements were
the result of the government’s timely objections to the PSI upon resentencing. The government
attempted to make those same objections at the original sentencing; however, they were untimely.
The district court was permitted to consider the objections on remand because they were timely and

                                               12
       Further, the transcript of the resentencing hearing reflects that the district

court carefully considered each of the parties’ objections, detailed the basis for its

calculations, and explained the reasons the new sentences were longer than the

original sentences. See United States v. Cox, 299 F.3d 143, 149-50 (2d Cir. 2002)

(finding no vindictiveness and stating “the district court throughout these

proceedings carefully notified the parties of its concerns, considered their

arguments and submissions, and deliberately laid out its rationale”).

C.     Entitlement to Lesser Sentences

       The defendants also argue that they were entitled to a lesser sentence on

remand because two of their convictions were vacated. We disagree. It is well-

settled that a defendant is not entitled to a shorter sentence just because one or

more counts of conviction are dismissed on appeal and he is resentenced on the

remaining counts. See United States v. Warda, 285 F.3d 573, 580-81 (7th Cir.

2002); see also United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996).

                                      III. CONCLUSION



because the sentencing process had started anew. See United States v. Stinson, 97 F.3d 466, 469
(11th Cir. 1996) (“[W]hen a criminal sentence is vacated, it becomes void in its entirety; the sentence
– including any enhancements – has been wholly nullified and the slate wiped clean.” (internal
quotation marks and citation omitted)). Further, there is no evidence in the record that these
enhancements were the result of vindictiveness. In any event, as explained in footnote 6, the
defendants received lower sentences than the Guidelines range for their offenses due to the
applicable statutory maximums.

                                                  13
For the above reasons, we affirm the defendants’ sentences.

AFFIRMED.




                                 14
