United States v. Jorge Luis Puello-Pantoja

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 5, 2019
• Docket: 18-15250
• Status: Unpublished

Opinion

Case: 18-15250 Date Filed: 07/05/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15250 Non-Argument Calendar ________________________

D.C. Docket No. 8:15-cr-00026-SCB-SPF-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE LUIS PUELLO-PANTOJA,

Defendant-Appellant.

________________________

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

(July 5, 2019)

Before MARCUS, JORDAN and FAY, Circuit Judges.

PER CURIAM:

Jorge Luis Puello-Pantoja (“Puello-Pantoja”) appeals his 235-month, below-

guidelines sentence, imposed after pleading guilty to one count of conspiracy to

distribute cocaine knowing that it would be unlawfully imported into the United Case: 18-15250 Date Filed: 07/05/2019 Page: 2 of 4

States. On appeal, Puello-Pantoja argues that the $100 special assessment imposed

under 18 U.S.C. § 3013 was unlawful, and therefore, his sentence constituted cruel

and unusual punishment in violation of the Eighth Amendment. After careful

review, we affirm.

While we usually review de novo an Eighth Amendment challenge to a

sentence, our review is limited to plain error where the defendant fails to raise that

challenge before the district court. United States v. Mozie, 752 F.3d 1271, 1290

(11th Cir. 2014). To establish plain error, a defendant must show that: (1) there is

an error, (2) the error is plain or obvious, and (3) the error affects the defendant’s

substantial rights. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005).

If those conditions are met, we may exercise our discretion to recognize the error

only where the error “seriously affects the fairness, integrity or public reputation of

the judicial proceedings.” Id. (alteration and quotations omitted). “An error is not

plain unless it is contrary to explicit statutory provisions or to on-point precedent in

this Court or the Supreme Court.” United States v. Hoffman, 710 F.3d 1228, 1232

(11th Cir. 2013) (quotations omitted).

The Eighth Amendment provides that: “Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. amend. VIII. “In non-capital cases, the Eighth Amendment encompasses, at

most, only a narrow proportionality principle.” Mozie, 752 F.3d at 1290 (quotations

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omitted). We give substantial deference to Congress in determining the types and

limits of punishments for certain crimes. Id. “Generally, sentences within the

statutory limits are neither excessive, nor cruel and unusual under the Eighth

Amendment.” United States v. Bowers, 811 F.3d 412, 432 (11th Cir. 2016)

(quotations omitted).

The district court “shall assess on any person convicted of an offense against

the United States . . . in the case of a felony . . . the amount of $100 if the defendant

is an individual.” 18 U.S.C. § 3013(a)(2)(A). The district court is required to impose

§ 3013’s special assessment for every conviction. Rutledge v. United States, 517

U.S. 292, 301 (1996).

Conspiracy to distribute five kilograms or more of cocaine, knowing it would

be unlawfully imported into the United States, is a felony offense. See 21 U.S.C. §§

959, 963, 960(b)(1)(B)(ii); 18 U.S.C. § 3559(a). The statute making that conduct a

federal crime “is intended to reach acts of manufacture or distribution committed

outside the territorial jurisdiction of the United States.” 21 U.S.C. § 959(d).

Here, because Puello-Pantoja did not expressly object to the constitutionality

of his sentence in the district court, we review his Eighth Amendment challenge for

plain error, and can find none. See Mozie, 752 F.3d at 1290. For starters, the district

court did not commit any error, since it was required by statute to impose the $100

assessment. 18 U.S.C. § 3013(a)(2)(A). Moreover, Puello-Pantoja has not identified

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any binding precedent holding that a felony conspiracy conviction under the United

States criminal code is not a crime “against the United States,” as provided in 18

U.S.C. § 3013(a)(2)(A). Id.; Hoffman, 710 F.3d at 1232. Finally, because the

district court did not commit any error in imposing the $100 special assessment, it

did not violate Puello-Pantoja’s Eighth Amendment rights against cruel and unusual

punishment. See U.S. Const. amend. VIII; Mozie, 752 F.3d at 1290; Bowers, 811

F.3d at 432. Accordingly, the district court did not plainly err, and we affirm Puello-

Pantoja’s sentence.

AFFIRMED.