United States v. Jose Daniel Deras Lopez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 25, 2018
• Docket: 17-13848
• Status: Unpublished

Opinion

Case: 17-13848 Date Filed: 05/25/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13848 Non-Argument Calendar ________________________

D.C. Docket No. 8:17-cr-00092-VMC-MAP-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE DANIEL DERAS LOPEZ,

Defendant-Appellant. ________________________

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

(May 25, 2018)

Before WILSON, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:

Defendant Jose Lopez received a 120-month sentence after pleading guilty

to two charges: (1) conspiracy to possess with intent to distribute five kilograms or Case: 17-13848 Date Filed: 05/25/2018 Page: 2 of 4

more of cocaine while on board a vessel subject to the jurisdiction of the United

States; and (2) possession with intent to distribute five kilograms or more of

cocaine while on board a vessel subject to the jurisdiction of the United States. On

appeal, Lopez argues that the district court erred in denying him a minor-role

adjustment pursuant to U.S.S.G. § 3B1.2. We hold that even if the district court

did err—an issue that we need not reach—any error was harmless because Lopez

received the statutory minimum sentence for his crimes. Moreover, and in any

event, we hold that because Lopez invited the very error that he now alleges, he is

precluded from challenging it.

“This Court has long and repeatedly held that a district court’s determination

of a defendant’s role in the offense is a finding of fact to be reviewed only for clear

error.” United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999).

“[W]hen, as here, the district court correctly imposes a statutory mandatory

minimum sentence that is greater than a defendant’s Guidelines range, any error in

the guidelines calculations is harmless, and we need not address these arguments.”

United States v. Chirino-Alvarez, 615 F.3d 1344, 1346 (11th Cir. 2010) (internal

citations, quotations omitted).

Here, the district court sentenced Lopez to a 120-month sentence, which is

the mandatory minimum sentence for his crimes. 21 U.S.C. § 960(b)(1)(B)(ii).

Any guidelines calculation error is therefore harmless, and we need not entertain

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Lopez’s contention that the district court erred in denying him a minor-role

downward adjustment. See Chirino-Alvarez, 615 F.3d at 1346.

Separately, “[i]t is a cardinal rule of appellate review that a party may not

challenge as error a ruling or other trial proceeding invited by that party.” United

States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (internal quotations omitted).

We have held that where a defendant “expressly acknowledged the court could

impose” a condition in its sentence and “did not object to a sentence including [that

condition],” the defendant “induced or invited the district court to impose a

sentence that included [the condition]” and was thus “precluded from claiming the

court erred” in its sentencing. United States v. Love, 449 F.3d 1154, 1157 (11th

Cir. 2006).

Here, Lopez invited the error that he now alleges. Not only did Lopez

submit a sentencing memorandum in which he suggested that “[the district] court

should impose a sentence of 120 months which is the mandatory minimum,” but he

also requested at sentencing that the district court “consider the arguments that [he]

made . . . and impose the mandatory minimum sentence.” The district court then

sentenced Lopez to 120 months’ imprisonment, and Lopez stated that he had “[n]o

other objections other than those already made.” Not only did Lopez “expressly

acknowledge[]” his sentence’s legitimacy and fail to object, as in Love, but he

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specifically requested the sentence that he received and is thus “precluded from

claiming the court erred.” 449 F.3d at 1157.

For the foregoing reasons, we AFFIRM the district court’s decision on the

merits. Additionally, we REMAND for the limited purpose of correcting the

scrivener’s error in the written judgment regarding Count Two. See United States

v. Wimbush, 103 F.3d 968, 970 (11th Cir. 1997). The second count with which the

United States charged Lopez (and to which Lopez pled guilty) was possession with

intent to distribute—not conspiracy to possess with intent to distribute—five

kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of

the United States.