           Case: 11-14911    Date Filed: 09/26/2012        Page: 1 of 6


                                                                 [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-14911
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 4:11-cr-10004-JEM-2



UNITED STATES OF AMERICA,

                                llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

                                    versus

YASMANY SANTANA,

                             llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.

                      ________________________

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

                            (September 26, 2012)

Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Yasmany Santana appeals his eighty-four-month sentence, which the district

court imposed after he pleaded guilty to conspiracy with intent to distribute

cocaine and cocaine base in violation of 21 U.S.C. § 846. On appeal, Santana

argues that the district court improperly calculated his criminal history and

imposed an unreasonable sentence.

                                          I.

      We turn first to Santana’s argument that the district court miscalculated his

criminal history. Santana’s Pre-Sentence Report (PSR) assigned him a criminal

history category of V based on a total of eleven criminal history points. Two of

those eleven points stemmed from a 2009 Florida conviction for trespassing for

which Santana spent 103 days in jail. See U.S.S.G. § 4A1.1(b). Santana filed an

objection to the PSR arguing that his 2009 conviction did not support the two-

point enhancement. He noted that his sentence for the 2009 conviction was only

for “time served,” and that he received credit for the 103 days he had spent in jail

prior to the imposition of the sentence. He argued that a “time served” sentence

could not be counted under U.S.S.G. § 4A1.2(c)(1), and that the sentence did not

exceed sixty days under § 4A1.1(b). The district court rejected this argument at

the sentencing hearing.

      On appeal, Santana argues for the first time that his sentence of 103 days

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was illegal under Florida law, because his 2009 trespass conviction was a second-

degree misdemeanor subject to a maximum punishment of sixty days

imprisonment.1 He claims that, because his sentence would be illegal under

Florida law, his sentence cannot be equivalent to a 103-day sentence.

       We review a district court’s factual findings for clear error and its

application of the sentencing guidelines to those facts de novo. United States v.

McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006). However, we review

objections to sentencing calculations raised for the first time on appeal for plain

error. United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). This standard

requires 1) an error; 2) that is plain; 3) that affects a substantial right of the

defendant; and 4) that undermines the public integrity of judicial proceedings. See

id. at 831–32. Section 4A1.1(b) adds two criminal history points for “each prior

sentence of imprisonment of at least sixty days.” U.S.S.G. § 4A1.1(b). Section

4A1.1(c) adds one point for any prior sentence that falls below the threshold of

§ 4A1.1(b). See id. § 4A1.1(c). However, § 4A1.2(c)(1) excludes from an

offender’s criminal history certain misdemeanors and petty offenses, including

trespassing, if the term of probation was less than one year or if the prison

sentence was for less than thirty days. See id. § 4A1.2(c)(1). Thus, a trespassing


       1
           See Fla. Stat. § 810.08(2)(a); see also id. § 775.082(4)(b).

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misdemeanor conviction only earns points under § 4A1.1(b) if it carries a sentence

of at least thirty days.

       Santana did not address the alleged illegality of his 103-day sentence under

Florida law in front of the district court. Therefore, we review his argument for

plain error. Bennett, 472 F.3d at 831–32. The government concedes that

Santana’s 2009 trespass conviction carried a maximum sentence of sixty-days

imprisonment under Florida law. Nevertheless, the government contends that

even if Santana’s 2009 trespass conviction did not warrant a two-point

enhancement under § 4A1.1(b), it would still merit a one-point enhancement under

§§ 4A1.1(c) and 4A1.2(c)(1). Even with this adjustment in place, Santana would

have a criminal history of ten instead of eleven points, which would still place him

in a criminal history category of V. See U.S.S.G. Ch. 5 Pt. A. Therefore, even

assuming the district court erred in assigning Santana two criminal history points

under § 4A1.1(b),2 any such error did not affect Santana’s substantial rights, so it

did not constitute plain error.


       2
          We pause to express doubt that the district court erred in assigning two points under
§ 4A1.1(b). Florida law permits a “term of imprisonment not exceeding 60 days” for second-
degree misdemeanors, including trespassing. Fla. Stat. § 775.082(4)(b) (emphasis added). The
sentencing guidelines impose two criminal history points for each prior sentence “of at least sixty
days.” U.S.S.G. § 4A1.1(b) (emphasis added). Therefore, even if we were to read Santana’s
prior sentence of 103 days as imposing the sixty-day statutory maximum under Fla. Stat.
§ 775.082(4)(b), the conviction would still result in a two-point enhancement under § 4A1.1(b).

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      In response, Santana seems to argue that we should deem his 2009 sentence

as being less than thirty days because the 103-day time-served sentence exceeded

the statutory maximum under Florida law. However, he cites no authority to

support this proposition, and we do not find this argument compelling. See United

States v. Phillips, 120 F.3d 227, 231 (11th Cir. 1997) (“[I]n sentencing a defendant

a district court cannot ignore . . . a prior conviction that has not been invalidated in

a prior proceeding, unless there was an unwaived absence of counsel in the

proceedings resulting in that conviction.”).

                                           II.

      We turn next to Santana’s argument that his sentence was procedurally and

substantively unreasonable. In reviewing the reasonableness of a sentence, we

first determine whether the district court committed procedural error. Gall v.

United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We then evaluate the

substantive reasonableness of the sentence under an abuse of discretion standard.

Id.

      Santana argues that his sentence is procedurally unreasonable because the

district court failed to correctly calculate his criminal history, and because it failed

to consider the nature and circumstances of the offense, pursuant to 18 U.S.C.

§ 3553(a)(1). As we explained above, we reject that the alleged error regarding

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Santana’s criminal history category constitutes reversible error. As to

§ 3553(a)(1), Santana argues that the district court erred by refusing to consider

the relative responsibility of his co-defendant, thereby resulting in an unfair

sentencing disparity. In fact, the district court did consider the relative roles of

Santana and his co-defendant, but concluded that the co-defendant’s relative

responsibility was ultimately immaterial to Santana’s sentence. The court

explained that Santana deserved a higher sentence than his co-defendant in light of

his violation of parole and criminal history. Therefore, we find Santana’s

allegation of procedural error to be without merit.

      For the same reason, we reject Santana’s argument that the district court’s

sentence was substantively unreasonable because the court failed to give sufficient

weight to the relative role of the defendants under § 3553(a)(1).

                                          III.

      For these reasons, we AFFIRM the district court.




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