             Case: 16-13040   Date Filed: 03/06/2017   Page: 1 of 4


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-13040
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 1:15-cr-00413-AT-JKL-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

JESUS VALENTI-PALMA,
a.k.a. Leonel,
a.k.a. Jesus Palma-Valente,
a.k.a. Jesus Palma-Valenti,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                               (March 6, 2017)
                Case: 16-13040       Date Filed: 03/06/2017      Page: 2 of 4


Before JORDAN, ROSENBAUM, and EDMONDSON, Circuit Judges.



PER CURIAM:



       Jesus Valenti-Palma, a federal prisoner proceeding with the assistance of

counsel, appeals his sentences for identification document fraud, Social Security

fraud, and reentering the United States without permission after deportation.

Valenti-Palma argues that the district court erred in determining that his prior

conviction for Georgia aggravated assault qualified as a “crime of violence” under

section 2L1.2(b)(1)(A)(ii) of the 2015 Sentencing Guidelines, resulting in an

incorrect guideline calculation. *

       “We review de novo whether a defendant’s prior conviction qualifies as a

‘crime of violence’ under the Sentencing Guidelines.” United States v. Palomino

Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010). “An error in the district court’s

calculation of the Sentencing Guidelines range warrants vacating the sentence,

unless the error is harmless.” United States v. Barner, 572 F.3d 1239, 1247 (11th

Cir. 2009). A guideline “miscalculation is harmless if the district court would have

imposed the same sentence without the error.” Id. at 1248. Furthermore, if a

district court, faced with disputed guideline issues, states that the guideline that

*
  Appellee’s motion for summary affirmance is denied as is the motion to stay briefing. We have
treated the case as fully briefed as the parties have requested.
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results from resolution of those issues does not matter to the sentence imposed

after consideration of the 18 U.S.C. § 3553(a) factors, then any error is harmless.

United States v. Lozano, 490 F.3d 1317, 1324 (11th Cir. 2007). Issues not timely

raised in the initial briefs are deemed abandoned. United States v. Ford, 270 F.3d

1346, 1347 (11th Cir. 2001).

      Any error that might have resulted from the district court’s conclusion that

Valenti-Palma’s prior Georgia conviction for aggravated assault qualified as a

crime of violence under the 2015 Sentencing Guidelines was harmless, because the

district court stated that the resolution of the issue of whether Georgia aggravated

assault qualified as a crime of violence did not matter to -- did not “ultimately

control” -- the sentence imposed after consideration of the 18 U.S.C. § 3553(a)

factors. See Lozano, 490 F.3d at 1324. Because the district court disagreed with

the categorical approach used in the 2015 Sentencing Guidelines -- as being

“overly complex and resource-intensive,” unhelpful in determining an appropriate

and reasonable sentence pursuant to § 3553(a), and as resulting in a

“disproportionately heavy sentence” -- the district court sentenced Valenti-Palma,

instead, in line with the 2016 Sentencing Guidelines which the district court saw as

fairer. Therefore, what was or was not a crime of violence under the 2015

Guidelines became of no consequence.




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      In his initial brief, Valenti-Palma does not challenge the district court’s

decision to look to the 2016 Sentencing Guidelines, rather than the 2015

Guidelines in effect at the time of his sentencing; he, consequently, has abandoned

such a challenge. See Ford, 270 F.3d at 1347. Notwithstanding Valenti-Palma’s

failure to raise timely this issue, the district court committed no error in refusing --

as a matter of policy -- to apply the 2015 Sentencing Guidelines. See, e.g. Spears

v. United States, 555 U.S. 261, 264 (2009) (a district court has the authority to vary

from the advisory guidelines range based on the district court’s “disagreement with

the guidelines -- its policy view that the [applicable guideline] creates an

unwarranted disparity.”).

      Because any error in interpreting the 2015 Sentencing Guidelines was

harmless in this case, we do not take on whether Georgia aggravated assault

qualifies as a crime of violence.

      AFFIRMED.




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