United States v. Edwin Aguilar-Ibarra

Opinion

Case: 13-10307 Date Filed: 01/22/2014 Page: 1 of 10

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 13-10307 Non-Argument Calendar ________________________

D.C. Docket No. 1:12-cr-20551-KMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWIN AGUILAR-IBARRA,

Defendant-Appellant.

________________________

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

(January 22, 2014)

Before CARNES, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM:

Edwin Aguilar-Ibarra appeals his 87-month sentence, imposed after he

pleaded guilty to conspiracy to commit a Hobbs Act robbery and the commission Case: 13-10307 Date Filed: 01/22/2014 Page: 2 of 10

of a Hobbs Act robbery. See 18 U.S.C. § 1951. He challenges the district court’s

application of a two-level bodily injury enhancement under § 2B3.1(b)(3)(A) of

the United States Sentencing Guidelines, contending that the court erred in

concluding that his objection to the enhancement was both untimely and without

merit.

I.

In the pre-dawn hours on January 15, 2012, four masked men, including

Aguilar-Ibarra, entered a Florida warehouse brandishing replica semi-automatic

pistols. The intruders bound, gagged, and then forced a warehouse employee into

a back office, where they assaulted him and secured him to a chair with duct tape.

One of the assailants then used a warehouse forklift to load over half a million

dollars’ worth of cellular phones into a truck that had been stolen from a nearby

business.

Aguilar-Ibarra’s presentence investigation report (PSR) calculated a total

offense level of 27, which included a two-level increase under U.S.S.G.

§ 2B3.1(b)(3)(A) because a victim of the robbery had sustained bodily injury. In

support of that enhancement, the PSR indicated that the warehouse employee “was

taken to the hospital for minor injuries” as a result of the assault. Aguilar-Ibarra’s

total offense level, when coupled with his criminal history category of I, yielded a

sentencing guidelines range of 70 to 87 months imprisonment. Aguilar-Ibarra did

2 Case: 13-10307 Date Filed: 01/22/2014 Page: 3 of 10

not file any written objections to the PSR within the 14-day period prescribed by

Federal Rule of Criminal Procedure 32(f)(1).

At sentencing, defense counsel objected to the bodily injury enhancement,

asserting that she and the government had agreed that the enhancement should not

apply because there was no evidence that the warehouse employee had sustained

any bodily injuries, and because it had not been applied at the sentencing of

Aguilar-Ibarra’s co-conspirators. The government’s attorney, laboring under the

mistaken impression that the two-level enhancement required proof of serious

bodily injury, confirmed that “the victim did not sustain a serious bodily injury.”

The district court, after recounting the factual allegations in the PSR and

emphasizing that the two-level enhancement did not require the presence of serious

bodily injury, asked the parties whether they disputed the PSR’s statement that the

warehouse employee had sustained minor injuries and was taken to the hospital.

The government initially responded that it had “no evidence that there were bodily

injuries,” but quickly clarified that it had no evidence of “the extent of those

injuries” and that it did not dispute that the victim had suffered minor injuries.

Defense counsel similarly stated that she was not disputing the factual allegations

in the PSR, though she was unable to ascertain the nature of the victim’s injuries.

The district court then questioned the probation officer about the source of

the information included in the PSR. The probation officer responded that the

3 Case: 13-10307 Date Filed: 01/22/2014 Page: 4 of 10

government had provided that information and that he was “familiar with the

related case” against Aguilar-Ibarra’s co-conspirators because he “covered [their]

sentencing hearing.” The probation officer also clarified that the co-conspirators

had indeed received the bodily injury enhancement at sentencing. Defense counsel

conceded that she misunderstood what occurred at the co-conspirator’s sentence

hearing and stated that she had “nothing further” on the enhancement issue. The

court then overruled Aguilar-Ibarra’s objection as both “untimely” and “without

merit.” After adopting the PSR in full, the court sentenced Aguilar-Ibarra to a total

term of 87 months imprisonment. When asked whether he had any objections to

the court’s factual findings and sentence, Aguilar-Ibarra replied, “No.”

II.

Aguilar-Ibarra contends that the district court erred in rejecting his objection

to the bodily injury enhancement as untimely. He asserts that the time limit for

filing objections to the PSR was inapplicable in this case because he and the

government agreed that the enhancement should not apply, and, in any event, the

court exercised its discretion to waive the timeliness requirement when it

considered and ruled on the merits of his objection.

Rule 32(f)(1) of the Federal Rules of Criminal Procedure provides that

“[w]ithin 14 days after receiving the [PSR], the parties must state in writing any

objections, including objections to material information, sentencing guideline

4 Case: 13-10307 Date Filed: 01/22/2014 Page: 5 of 10

ranges, and policy statements contained in or omitted from the report.” Fed. R.

Crim. P. 32(f)(1). After receiving any written objections from the parties, the

probation officer “may meet with the parties to discuss the objections,”

“investigate further,” and “revise the presentence report as appropriate.” Fed. R.

Crim. P. 32(f)(3). At least seven days before sentencing, the probation officer

must submit the PSR to the court along with “an addendum containing any

unresolved objections, the grounds for those objections, and the probation officer’s

comments on them.” Fed. R. Crim. P. 32(g). For good cause shown, however, the

district court may extend the 14-day deadline for filing objections to the PSR, see

Fed. R. Crim. P. 32(b)(2), or “allow a party to make a new objection at any time

before sentence is imposed,” Fed. R. Crim. P. 32(i)(1)(D).

Aguilar-Ibarra did not comply with the 14-day deadline for objecting to the

contents of the PSR, and there is no merit to his contention that the deadline was

inapplicable because the parties agreed that the bodily injury enhancement should

not apply. Aguilar-Ibarra takes the position that the procedures mandated by Rule

32(f) are simply designed to “resolve disputes between the parties” and that it is

therefore unnecessary to submit written objections in advance of sentencing “to

correct an undisputed error in the [PSR].”

Rule 32(f)(1), however, clearly provides that all objections to the PSR,

whether or not they are shared by the parties, must be submitted in writing well in

5 Case: 13-10307 Date Filed: 01/22/2014 Page: 6 of 10

advance of sentencing. And the manifest purpose of Rule 32 as a whole, of which

the procedures and deadlines mandated by subsection (f) are an integral part, is not

simply to resolve disputes between the parties; it is to ensure that the district court

can meaningfully exercise its sentencing authority based on a complete and

accurate account of all relevant information. See Fed. R. Crim. P. 32(c)–(f)

(mandating the preparation and submission of a PSR in advance of sentencing so

that a district court can “meaningfully exercise its sentencing authority under 18

U.S.C. § 3553”); Fed. R. Crim. P. 32 advisory committee notes (1975) (explaining

that because “presentence reports are important aids in sentencing,” it is “essential

that the presentence report be completely accurate in every material respect”). The

deadlines imposed by subsection (f) are meant to facilitate this process by ensuring

that the probation officer has an adequate opportunity to investigate and resolve

any potential inaccuracies in the PSR, regardless of whether those inaccuracies are

perceived by one or both parties. See Fed. R. Crim. P. 32 advisory committee

notes (1994). Aguilar-Ibarra’s position not only runs counter to the clear import of

Rule 32(f)(1), but also ignores two fundamental, intertwined tenets of sentencing

law — that a district court has an independent obligation to “calculate correctly the

sentencing range prescribed by the Guidelines,” United States v. Gibson, 434 F.3d

1234, 1243 (11th Cir. 2006) (quotation marks omitted), and that it is therefore “not

6 Case: 13-10307 Date Filed: 01/22/2014 Page: 7 of 10

bound by the parties’ agreements or recommendations” at sentencing, United

States v. Johnson, 132 F.3d 628, 630 (11th Cir. 1998).

Although it is certainly true that the district court had the discretion to waive

the timeliness requirement for good cause, Aguilar-Ibarra did not show cause for

failing to timely raise his objection to the bodily injury enhancement, and the

district court did not exercise its discretion to waive the timeliness requirement.

The court expressly overruled Aguilar-Ibarra’s objection as untimely, and although

it alternatively addressed the merits of that objection, the court “never indicated

that it would excuse the [timeliness requirement] and decide the [] issue solely on

the merits.” See United States v. Milian-Rodriguez, 828 F.2d 679, 683 (11th Cir.

1987) (district court’s decision to deny a suppression motion both on timeliness

grounds and on the merits did not excuse the untimeliness of the motion where the

district court “never indicated that it would excuse the waiver and decide the []

issue solely on the merits”). The district court did not err in overruling Aguilar-

Ibarra’s objection to the § 2B3.1(b)(3)(A) enhancement as untimely. For that

reason, we treat the matter as if no objection had been made.

III.

Aguilar-Ibarra argues that the district court erred in applying the

§ 2B3.1(b)(3)(A) enhancement because there was no evidence that the robbery

victim sustained any bodily injury, and the government purportedly conceded the

7 Case: 13-10307 Date Filed: 01/22/2014 Page: 8 of 10

absence of such evidence at sentencing. He also argues that even if the district

court could rely solely on the factual allegations contained in the PSR, those

allegations do not support a finding of bodily injury, as defined by the guidelines,

because the PSR did not describe the precise nature of the victim’s injuries or

specify that they were of a type that ordinarily would require medical attention.

As we have discussed, because Aguilar-Ibarra did not file a timely objection

to the bodily injury enhancement, and because the district court did not waive the

applicable time limit for good cause shown, we review the present claim for plain

error only. See United States v. Parrish, 427 F.3d 1345, 1346 (11th Cir. 2005)

(“[W]e review for plain error those issues to which the defendant did not make

timely objections in the district court.”). Under plain error review, Aguilar-Ibarra

bears the “burden of establishing that (1) there is an error; (2) that is plain or

obvious; (3) affecting his substantial rights in that it was prejudicial and not

harmless; and (4) that seriously affects the fairness, integrity, or public reputation

of the judicial proceedings.” United States v. Beckles, 565 F.3d 832, 842 (11th

Cir. 2009) (quotation marks and brackets omitted). “Before an error is subject to

correction under the plain error rule, it must be plain under controlling precedent or

in view of the unequivocally clear words of a statute or rule.” United States v.

Schmitz, 634 F.3d 1247, 1270–71 (11th Cir. 2011) (quotation marks omitted).

8 Case: 13-10307 Date Filed: 01/22/2014 Page: 9 of 10

Section 2B3.1 of the sentencing guidelines, which governs robbery offenses,

imposes varying degrees of enhancements if “any victim sustained bodily injury.”

U.S.S.G. § 2B3.1(b)(3). The guidelines call for a two-level enhancement in the

event of “[b]odily [i]njury,” a four-level enhancement for “[s]erious [b]odily

[i]njury,” and a six-level enhancement for “[p]ermanent or [l]ife-[t]hreatening

[b]odily [i]njury.” Id. Bodily injured is defined by the guidelines as “any

significant injury; e.g., an injury that is painful and obvious, or is of a type for

which medical attention ordinarily would be sought.” Id. § 1B1.1, cmt. n.1(B).

When a defendant challenges one of the factual bases of his sentence, the

government must prove the disputed fact by a preponderance of the evidence.

United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009). A district court may,

however, base its factual findings on undisputed statements in the PSR, because a

defendant is deemed to have admitted any such statements that he has not objected

to “with specificity and clarity.” Beckles, 565 F.3d at 843–44 (quotation marks

omitted). “Indeed, the defendant’s failure to object to conclusory statements in the

[PSR] renders those statements undisputed and permits the sentencing court to rely

upon them without error even if there is an absence of supporting evidence.” Id. at

844.

Although Aguilar-Ibarra argued at sentencing that there was no evidence

that the warehouse employee had sustained any bodily injuries, he did not dispute

9 Case: 13-10307 Date Filed: 01/22/2014 Page: 10 of 10

the PSR’s factual statements that the employee suffered minor injuries as result of

being assaulted and was taken to the hospital for those injuries. In fact, when the

district court pointedly asked both parties whether they disputed that portion of the

PSR, they affirmatively stated that they did not. Because Aguilar-Ibarra did not

specifically and clearly object to these factual statements contained in the PSR, he

is deemed to have admitted them and the district court was entitled to rely on them

even in the absence of supporting evidence. See id. at 843–44.

And based on the undisputed facts in the PSR that the victim was assaulted

by multiple masked men brandishing replica firearms and then transported to the

hospital with minor injuries, the district court did not plainly err in concluding that

the victim sustained a bodily injury within the meaning of the guidelines. The

court could have reasonably inferred from these undisputed facts that the victim’s

injuries were either “painful and obvious” or “of a type for which medical attention

ordinarily would be sought.” See U.S.S.G. § 1B1.1, cmt. n.1(B). Aguilar-Ibarra

has not cited any controlling precedent from this circuit or the Supreme Court

holding otherwise, and the fact that the PSR did not specifically describe the nature

of the “minor injuries” sustained by the victim does not render the district court’s

application of the § 2B3.1(b)(3)(A) enhancement plainly erroneous. We therefore

affirm Aguilar-Ibarra’s sentence.

AFFIRMED.