Case: 19-13914 Date Filed: 06/17/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13914 Non-Argument Calendar ________________________
D.C. Docket No. 8:15-cr-00308-EAK-TGW-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR OSBALDO RODRIGUEZ, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 17, 2020)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-13914 Date Filed: 06/17/2020 Page: 2 of 7
This is Rodriguez’s second appeal arising from this criminal case, in which
he pled guilty to several drug-trafficking offenses. For these offenses, Rodriguez
originally was sentenced to a total term of 180 months of imprisonment. On appeal
from that sentence, we vacated the district court’s application of an enhancement
under U.S.S.G. § 2D1.1(b)(15)(C) (2016),1 which directs a two-level increase to the
guideline offense level where “[t]he defendant was directly involved in the
importation of a controlled substance.” See United States v. Rodriguez, 780 F.
App’x 764, 768 (11th Cir. 2019). Noting that the court did not make “a factual
finding beyond that the offense involved heroin imported from Mexico,” which
alone is insufficient to show direct involvement, we remanded for the court to clarify
its grounds for applying the enhancement. Id. at 767–68. In the alternative, we
advised that “if the district court would have imposed the same sentence regardless
of its resolution of the guideline issue, given that it imposed a sentence outside the
guideline range, it may state as much and its reasons for doing so.” Id. at 768.
On remand, the district court resentenced Rodriguez and reapplied the
importation enhancement under § 2D1.1(b)(15)(C) (2016). The court found that the
enhancement was appropriate because there was sufficient circumstantial evidence
to show an agreement to import heroin from Mexico. Alternatively, the court found
that the 180-month sentence originally imposed was “a correct and legally
1 This same enhancement now appears under U.S.S.G. § 2D1.1(b)(16)(C). 2 Case: 19-13914 Date Filed: 06/17/2020 Page: 3 of 7
appropriate sentence based upon the same evidence, regardless of the resolution of
the guideline issue.” Rodriguez now brings this second appeal, challenging the
district court’s application of the § 2D1.1(b)(15)(C) (2016) enhancement and
arguing that the court’s error in applying that enhancement was not harmless because
his sentence is procedurally and substantively unreasonable.
We review the district court’s application of the Sentencing Guidelines de
novo and its findings of fact for clear error. United States v. Victor, 719 F.3d 1288,
1290 (11th Cir. 2013). “Clear error review is deferential, and we will not disturb a
district court’s findings unless we are left with a definite and firm conviction that a
mistake has been committed.” United States v. Cruickshank, 837 F.3d 1182, 1192
(11th Cir. 2016) (quotation marks omitted).
Section 2D1.1(b)(15)(C) of the 2016 Sentencing Guidelines provides that,
if a defendant receives an adjustment under § 3B1.1 for an aggravating role and
“was directly involved in the importation of a controlled substance,” the base
offense level is increased by two levels. U.S.S.G. § 2D1.1(b)(15)(C) (2016).
The commentary offers the following guidance for applying this enhancement:
Subsection (b)(15)(C) applies if the defendant is accountable for the importation of a controlled substance under subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)), i.e., the defendant committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused the importation of a controlled substance.
3 Case: 19-13914 Date Filed: 06/17/2020 Page: 4 of 7
Id. § 2D1.1, cmt. n.20(B). In other words, the enhancement must be based solely
on the defendant’s own conduct, see § 1B1.3(a)(1)(A), and not on the reasonably
foreseeable acts of others in furtherance of jointly undertaken activity, see id.
§ 1B1.3(a)(1)(B).
Rodriguez contends that the district court failed to clarify its grounds for
applying the importation enhancement and that the record does not contain a
factual basis to support this enhancement. The government responds that the
enhancement was appropriate because the evidence shows that Rodriguez aided
and abetted the importation of heroin from Mexico.
Ultimately, however, we need not determine whether the district court
erred in applying the importation enhancement under § 2D1.1(b)(15)(C) (2016).
Under our precedent, a guideline “calculation error is harmless when a district
judge clearly states that she would impose the same sentence regardless of the
enhancement,” and the sentence would be reasonable even if the guideline issue
had been decided in the defendant’s favor. United States v. Perkins, 787 F.3d
1329, 1341 (11th Cir. 2015); United States v. Keene, 470 F.3d 1347, 1349 (11th
Cir. 2006). “Our rationale for this policy is to avoid pointless reversals and
unnecessary do-overs of sentence proceedings.” United States v. McLellan, 958
F.3d 1110, 1116 (11th Cir. 2020) (quotation marks omitted).
4 Case: 19-13914 Date Filed: 06/17/2020 Page: 5 of 7
Here, any error in applying the importation enhancement was harmless
because the district court expressly stated that it would have imposed the same
sentence regardless of its resolution of this guideline issue, and the 180-month
sentence would be reasonable even if the guideline issue had been resolved in
Rodriguez’s favor. See Keene, 470 F.3d at 1349.
In evaluating the substantive reasonableness of a sentence, we consider the
totality of the circumstances and whether the sentence achieves the goals of
sentencing set out in 18 U.S.C. § 3553(a). United States v. Sarras, 575 F.3d 1191,
1219 (11th Cir. 2009). We will defer to the district court’s judgment in weighing
the § 3553(a) factors unless the court made “a clear error of judgment” and imposed
“a sentence that lies outside the range of reasonable sentences dictated by the facts
of the case.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)
(quotation marks omitted).
Rodriguez’s total sentence of 180 months of imprisonment is
substantively reasonable. If the two-level importation enhancement did not
apply, Rodriguez’s total offense level would have been 32 and his resulting
guideline range would have been 168 to 210 months of imprisonment instead of
210 to 262 months. Rodriguez’s sentence was within the lower guideline range,
“so we expect [it] to be reasonable.” United States v. Dixon, 901 F.3d 1322,
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Case: 19-13914 Date Filed: 06/17/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13914 Non-Argument Calendar ________________________
D.C. Docket No. 8:15-cr-00308-EAK-TGW-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR OSBALDO RODRIGUEZ, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 17, 2020)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-13914 Date Filed: 06/17/2020 Page: 2 of 7
This is Rodriguez’s second appeal arising from this criminal case, in which
he pled guilty to several drug-trafficking offenses. For these offenses, Rodriguez
originally was sentenced to a total term of 180 months of imprisonment. On appeal
from that sentence, we vacated the district court’s application of an enhancement
under U.S.S.G. § 2D1.1(b)(15)(C) (2016),1 which directs a two-level increase to the
guideline offense level where “[t]he defendant was directly involved in the
importation of a controlled substance.” See United States v. Rodriguez, 780 F.
App’x 764, 768 (11th Cir. 2019). Noting that the court did not make “a factual
finding beyond that the offense involved heroin imported from Mexico,” which
alone is insufficient to show direct involvement, we remanded for the court to clarify
its grounds for applying the enhancement. Id. at 767–68. In the alternative, we
advised that “if the district court would have imposed the same sentence regardless
of its resolution of the guideline issue, given that it imposed a sentence outside the
guideline range, it may state as much and its reasons for doing so.” Id. at 768.
On remand, the district court resentenced Rodriguez and reapplied the
importation enhancement under § 2D1.1(b)(15)(C) (2016). The court found that the
enhancement was appropriate because there was sufficient circumstantial evidence
to show an agreement to import heroin from Mexico. Alternatively, the court found
that the 180-month sentence originally imposed was “a correct and legally
1 This same enhancement now appears under U.S.S.G. § 2D1.1(b)(16)(C). 2 Case: 19-13914 Date Filed: 06/17/2020 Page: 3 of 7
appropriate sentence based upon the same evidence, regardless of the resolution of
the guideline issue.” Rodriguez now brings this second appeal, challenging the
district court’s application of the § 2D1.1(b)(15)(C) (2016) enhancement and
arguing that the court’s error in applying that enhancement was not harmless because
his sentence is procedurally and substantively unreasonable.
We review the district court’s application of the Sentencing Guidelines de
novo and its findings of fact for clear error. United States v. Victor, 719 F.3d 1288,
1290 (11th Cir. 2013). “Clear error review is deferential, and we will not disturb a
district court’s findings unless we are left with a definite and firm conviction that a
mistake has been committed.” United States v. Cruickshank, 837 F.3d 1182, 1192
(11th Cir. 2016) (quotation marks omitted).
Section 2D1.1(b)(15)(C) of the 2016 Sentencing Guidelines provides that,
if a defendant receives an adjustment under § 3B1.1 for an aggravating role and
“was directly involved in the importation of a controlled substance,” the base
offense level is increased by two levels. U.S.S.G. § 2D1.1(b)(15)(C) (2016).
The commentary offers the following guidance for applying this enhancement:
Subsection (b)(15)(C) applies if the defendant is accountable for the importation of a controlled substance under subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)), i.e., the defendant committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused the importation of a controlled substance.
3 Case: 19-13914 Date Filed: 06/17/2020 Page: 4 of 7
Id. § 2D1.1, cmt. n.20(B). In other words, the enhancement must be based solely
on the defendant’s own conduct, see § 1B1.3(a)(1)(A), and not on the reasonably
foreseeable acts of others in furtherance of jointly undertaken activity, see id.
§ 1B1.3(a)(1)(B).
Rodriguez contends that the district court failed to clarify its grounds for
applying the importation enhancement and that the record does not contain a
factual basis to support this enhancement. The government responds that the
enhancement was appropriate because the evidence shows that Rodriguez aided
and abetted the importation of heroin from Mexico.
Ultimately, however, we need not determine whether the district court
erred in applying the importation enhancement under § 2D1.1(b)(15)(C) (2016).
Under our precedent, a guideline “calculation error is harmless when a district
judge clearly states that she would impose the same sentence regardless of the
enhancement,” and the sentence would be reasonable even if the guideline issue
had been decided in the defendant’s favor. United States v. Perkins, 787 F.3d
1329, 1341 (11th Cir. 2015); United States v. Keene, 470 F.3d 1347, 1349 (11th
Cir. 2006). “Our rationale for this policy is to avoid pointless reversals and
unnecessary do-overs of sentence proceedings.” United States v. McLellan, 958
F.3d 1110, 1116 (11th Cir. 2020) (quotation marks omitted).
4 Case: 19-13914 Date Filed: 06/17/2020 Page: 5 of 7
Here, any error in applying the importation enhancement was harmless
because the district court expressly stated that it would have imposed the same
sentence regardless of its resolution of this guideline issue, and the 180-month
sentence would be reasonable even if the guideline issue had been resolved in
Rodriguez’s favor. See Keene, 470 F.3d at 1349.
In evaluating the substantive reasonableness of a sentence, we consider the
totality of the circumstances and whether the sentence achieves the goals of
sentencing set out in 18 U.S.C. § 3553(a). United States v. Sarras, 575 F.3d 1191,
1219 (11th Cir. 2009). We will defer to the district court’s judgment in weighing
the § 3553(a) factors unless the court made “a clear error of judgment” and imposed
“a sentence that lies outside the range of reasonable sentences dictated by the facts
of the case.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)
(quotation marks omitted).
Rodriguez’s total sentence of 180 months of imprisonment is
substantively reasonable. If the two-level importation enhancement did not
apply, Rodriguez’s total offense level would have been 32 and his resulting
guideline range would have been 168 to 210 months of imprisonment instead of
210 to 262 months. Rodriguez’s sentence was within the lower guideline range,
“so we expect [it] to be reasonable.” United States v. Dixon, 901 F.3d 1322,
1351 (11th Cir. 2018) (quotation marks omitted). It was also well below the
5 Case: 19-13914 Date Filed: 06/17/2020 Page: 6 of 7
statutory maximum of life imprisonment that applied to two counts, which is
another indicator of reasonableness. United States v. Nagel, 835 F.3d 1371,
1377 (11th Cir. 2016) (“The sentence is also significantly less than the applicable
statutory maximum of life in prison, which points strongly to reasonableness.”).
The reasonableness of the sentence is also supported by the facts of the
case and the 18 U.S.C. § 3553(a) sentencing factors. Rodriguez was a leader in
a drug-trafficking organization that distributed large quantities of heroin. He
also had several prior drug-trafficking convictions, and the presentence
investigation report indicates that Rodriguez began the drug-trafficking
activities in this case not long after he was released from state prison on a ten-
year sentence for trafficking in heroin. Based on the offense conduct and
Rodriguez’s criminal history and personal characteristics, we cannot say that the
sentence “lies outside the range of reasonable sentences dictated by the facts of
the case.” Gonzalez, 550 F.3d at 1324.
Rodriguez maintains that the district court failed to adequately explain its
decision at resentencing to deviate from its original decision to vary downward
from the low end of the guideline range by 30 months. But we have rejected the
argument that “when the only change between initial sentencing and
resentencing is a decrease in the advisory guidelines range, the district court
must decrease the defendant’s sentence.” United States v. Rosales-Bruno, 789
6 Case: 19-13914 Date Filed: 06/17/2020 Page: 7 of 7
F.3d 1249, 1258 (11th Cir. 2015). And the record here shows that “the district
court thought that the appropriate sentence in view of all of the facts and
circumstances” was 180 months, regardless of its resolution of the importation
enhancement. Id. The court’s explanation is sufficient to allow for meaningful
review. See Gall v. United States, 552 U.S. 38, 50–51 (2007); Rita v. United
States, 551 U.S. 338, 356–58 (2007).
For these reasons, we affirm Rodriguez’s 180-month sentence.
AFFIRMED.