                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-14450                ELEVENTH CIRCUIT
                                                             MAY 28, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                   D. C. Docket No. 08-80020-CR-DMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ENRIQUE VELAZQUEZ-TORNET,
a.k.a. Enrique Velazquez,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 28, 2009)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Enrique Velazquez-Tornet appeals his sentence of 60 months’

imprisonment, the statutory mandatory minimum penalty, arguing that it violated

his equal protection and Eighth Amendment rights. For the reasons set forth

below, we affirm.

                                          I.

      Pursuant to a written plea agreement, Velazquez-Tornet pled guilty to four

counts of bringing undocumented aliens into the United States for the purpose of

financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2

(Counts Two, Four, Five, and Eight).

      The probation officer prepared a pre-sentence investigation report (“PSI”),

where he determined that Velazquez-Tornet had a guideline range of 12 to 18

months’ imprisonment. However, the probation officer also determined that, with

respect to Counts 5 and 8, Velazquez-Tornet was subject to the statutory

mandatory minimum sentence of 60 months’ imprisonment under

§ 1324(a)(2)(B)(ii), which became his guideline sentence under U.S.S.G.

§ 5G1.1(b).

      Velazquez-Tornet objected to the PSI, arguing that he was entitled to a

minor-role reduction and that application of the five-year statutory mandatory

minimum penalty violated his equal protection and Eighth Amendment rights.



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      At sentencing, the court began by stating that it had reviewed the PSI and the

objections to the PSI, at which point the following colloquy took place:

       DEFENSE COUNSEL: Judge, if I might. I’m going to interrupt
                        because I’m withdrawing those objections.
                        I’ve spoke to [the prosecutor], and we were
                        able to resolve them. This is going to be a
                        real easy sentencing. There are no
                        objections. . . .

       COURT:                     So the objections are withdrawn?

       DEFENSE COUNSEL: Yes.


Defense counsel then informed the court that Velazquez-Tornet understood that he

was subject to the five-year statutory mandatory minimum sentence. The court

thereafter sentenced Velazquez-Tornet to 36 months’ imprisonment on Counts 2

and 4, and 60 months’ imprisonment on Counts 5 and 8, to run concurrently.

Defense counsel stated that he had no objections to the sentence.

                                          II.

      On appeal, Velazquez-Tornet argues that the applicable five-year statutory

mandatory minimum penalty violates equal protection because it makes irrational

and arbitrary classifications among offenses and that it violates the Eighth

Amendment’s prohibition on cruel and unusual punishment. However, defense

counsel affirmatively and unequivocally withdrew this exact argument at



                                          3
sentencing. As a result, this argument is deemed waived for purposes of appeal,

and we do not review it. See United States v. Horsfall, 552 F.3d 1275, 1283-84

(11th Cir. 2008) (concluding that defense counsel’s affirmative withdrawal of an

objection to the PSI at sentencing precluded this Court from reviewing that

argument on appeal), petition for cert. filed, (U.S. Mar. 18, 2009) (No. 08-9396).

                                        III.

      Accordingly, we affirm Velazquez-Tornet’s sentence.

      AFFIRMED.




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