                    Case: 11-14862         Date Filed: 08/02/2012   Page: 1 of 6

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-14862
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 5:11-cr-00056-SLB-HGD-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

MANUEL FRANCISCO DE LA CRUZ-ORTIZ,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (August 2, 2012)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Manuel Francisco de la Cruz-Ortiz (Cruz-Ortiz) appeals his sentence of 46

months’ imprisonment, arguing that the district court improperly calculated the

applicable sentencing guideline range. Because we conclude that any error in the

guideline calculations was harmless, we affirm.

      Cruz-Ortiz, a native of Mexico, pleaded guilty to illegal re-entry, in

violation of 8 U.S.C. § 1326, and admitted that he had been deported on two prior

occasions and had re-entered the United States without permission. Cruz-Ortiz

was deported in 2001 after a conviction in South Carolina for assault and battery

of a high and aggravated nature (ABHAN). After he returned to the U.S., he was

convicted of illegal re-entry and deported a second time in 2007. In 2011, he was

apprehended in Alabama, he admitted to authorities that he was in the U.S.

illegally, and he was convicted of the instant illegal re-entry charge.

      The probation officer prepared a presentence investigation report (PSI),

applying a base offense level of 8 under U.S.S.G. § 2L1.2 and adding a 16-level

enhancement for Cruz-Ortiz’s prior conviction for a crime of violence, the

ABHAN conviction, under § 2L1.2(b)(1)(A)(ii). With a three-level reduction for

acceptance of responsibility, Cruz-Ortiz’s adjusted offense level was 21, which,

when coupled with his criminal history category, yielded a guideline range of 46

to 57 months’ imprisonment. Cruz-Ortiz objected to the 16-level enhancement on

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the ground that his ABHAN conviction did not qualify as a crime of violence,

although he conceded that the Fourth Circuit had found it to be so in his appeal.

See United States v. Cruz-Ortiz, 184 F. App’x 341 (4th Cir. 2006). He also

requested a downward departure or variance based on cultural assimilation.

      At sentencing, the court overruled Cruz-Ortiz’s objection to his sentencing

enhancement, finding that the issue had been litigated previously. The court

calculated the guideline range to be 46 to 57 months’ imprisonment and found no

basis to depart or vary from this range. After considering Cruz-Ortiz’s history and

the fact that he had been deported twice, the court stated that it found a sentence

within the guideline range appropriate. The court sentenced Cruz-Ortiz to 46

months’ imprisonment and stated that it would impose the same sentence under

the 18 U.S.C. § 3553(a) sentencing factors even if it had resolved the guideline

issue differently. This is Cruz-Ortiz’s appeal.

      Cruz-Ortiz argues that the district court erred by enhancing his sentence

under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a crime of violence based on his prior

ABHAN conviction under South Carolina law. Cruz-Ortiz concedes that the

Fourth Circuit ruled on this issue in his appeal in a previous case, but he argues

that recent U.S. Supreme Court decisions and this court’s decision in United States

v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010), call into question the

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precedential effect of that decision.

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

“crime of violence” under the Sentencing Guidelines. United States v.

Rosales-Bruno, 676 F.3d 1017, 1020 (11th Cir. 2012).

      The Sentencing Guidelines provide for a 16-level enhancement in the

offense level if a defendant previously was removed after a felony conviction for a

“crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of violence” is

defined to include aggravated assault “or any other offense under federal, state, or

local law that has as an element the use, attempted use, or threatened use of

physical force against the person of another.” Id., comment. (n.1(B)(iii)).

      The government concedes that the district court improperly determined that

Cruz-Ortiz’s ABHAN conviction was a crime of violence. Nevertheless, where

the district court states that it would impose the same sentence even if it had

resolved the guideline issue differently, we will conclude that the guideline error

was harmless and affirm the sentence imposed as long as that sentence is

reasonable. United States v. Lozano, 490 F.3d 1317, 1324-25 (11th Cir. 2007);

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

whether the sentence is reasonable, we assume that the advisory guidelines range

would have been reduced according to the defendant’s arguments. Lozano, 490

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F.3d at 1324. We then ask whether the final sentence resulting from consideration

of the § 3553(a) factors would still be reasonable. Id.

      The district court is required to impose a sentence “sufficient, but not

greater than necessary to comply with the purposes” listed in 18 U.S.C.

§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote

respect for the law, provide just punishment for the offense, deter criminal

conduct, protect the public from the defendant’s future criminal conduct, and

provide the defendant with needed educational or vocational training or medical

care. See 18 U.S.C. § 3553(a)(2)(A)-(D). In imposing a particular sentence, the

court must also consider the nature and circumstances of the offense, the history

and characteristics of the defendant, the kinds of sentences available, the

applicable guideline range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwarranted sentencing disparities, and the need to

provide restitution to victims. Id. § 3553(a)(1), (3)-(7). A sentence imposed well

below the statutory maximum penalty is an indicator of a reasonable sentence.

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

      Here, the sentence imposed is reasonable. Because Cruz-Ortiz had prior

convictions, the statutory maximum penalty he faced was ten years’




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imprisonment.1 See 8 U.S.C. § 1326(b)(1). The 46-month sentence imposed is

well below this potential maximum sentence. Moreover, the court explained that

it considered the circumstances of the offense, the need to provide deterrence, and

possible disparities with other sentences. The court noted that Cruz-Ortiz already

had been deported twice and had been sentenced to 46 months’ imprisonment for

his prior illegal-re-entry conviction. Thus, the court found that a sentence below

the guideline range would not meet the sentencing factors and provide the

necessary deterrence. We cannot conclude on these facts that the sentence

imposed was unreasonable. Accordingly, we affirm Cruz-Ortiz’s sentence.

       AFFIRMED.




       1
           The government filed a notice of its intent to rely on Cruz-Ortiz’s prior convictions as
qualifiers for a twenty-year maximum sentence under 8 U.S.C. § 1326(b)(2). That section enhances
the penalty for defendants convicted of an “aggravated felony.” 8 U.S.C. § 1326(b)(2). An
“aggravated felony” as defined in 8 U.S.C. § 1101(a)(43) includes a crime of violence. Because the
government has conceded that Cruz-Ortiz’s prior conviction is not a crime of violence, we assume
the maximum sentence was ten years’ imprisonment under § 1326(b)(1).

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