USA v. Almando Enrique Marquez

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12016
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALMANDO ENRIQUE MARQUEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60036-WPD-1
____________________
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2 Opinion of the Court 21-12016
Before L UCK , BRASHER , and A NDERSON , Circuit Judges.
PER C URIAM:
Almando Enrique Marquez appeals his 151-month sentence,
imposed after he pleaded guilty to two counts of distribution of
heroin. We affirm.
Marquez has led a life of violence. He has been arrested ten
times since the age of fourteen, resulting in fourteen convictions.
In 2006, Marquez pleaded guilty to aggravated battery with
a deadly weapon after getting into an altercation and shooting his
victim in the left arm. During his ten-year prison sentence, he
racked up thirty-three disciplinary actions including fighting, disor-
derly conduct, participating in riots, possession of weapons, and
two instances of lewd or lascivious exhibition. The Florida Depart-
ment of Corrections designated Marquez as a perpetrator under
the Prison Rape Elimination Act and a career offender.
In 2019, Marquez pleaded guilty to possession of a fire-
arm/weapon by a convicted felon and attempted second-degree
murder. A police officer witnessed Marquez and the victim engage
in a physical altercation, during which Marquez “stabbed the vic-
tim multiple times in the left arm,” resulting in “multiple deep lac-
erations.” Marquez was sentenced to 366 days’ incarceration as a
habitual violent offender.
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21-12016 Opinion of the Court 3
In 2020, Marquez was charged with the murder of a man
who took multiple gunshot wounds to the torso and upper extrem-
ities. This case remains pending in state court.
Marquez was indicted for the current offense in 2021. Pur-
suant to a written agreement, he pleaded guilty to two counts of
distributing a detectable amount of heroin, in violation of 21 U.S.C.
section 841(a)(1). The probation office prepared a presentence in-
vestigation report, which included a career offender enhancement
resulting from Marquez’s 2006 aggravated battery and 2019 at-
tempted second-degree murder convictions. Marquez objected to
the report, arguing that his conviction for attempted second-degree
murder didn’t qualify as a crime of violence for purposes of the en-
hancement. He argued that this conviction wasn’t an enumerated
offense within section 4B1.2(a)(2), nor was it categorically a crime
of violence “under the identical elements clause of the Armed Ca-
reer Criminal Act.”
At sentencing, the district court recounted Marquez’s vio-
lent past, including the two offenses resulting in the career offender
enhancement, and overruled his objection. The parties confirmed
that Marquez’s guideline range, with the enhancement, was 151 to
188 months’ imprisonment. The district court asked Marquez
what the guideline range would be without the enhancement. Af-
ter initially responding that the range would be seventy to eighty-
seven months, Marquez agreed with the government that the cor-
rect range would be seventy-seven to ninety-six months. After
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4 Opinion of the Court 21-12016
stating that it had considered the guidelines and the section 3553(a)
factors, the district court addressed Marquez:
You have a terrible record. It’s a violent record. But
I’m going to reluctantly go along with the govern-
ment’s recommendation in this case. Let me also say
that if you weren’t a career offender, I would have de-
parted upward to the same sentence because I think
the Supreme Court says that I can disagree with the
guideline if I feel strongly about it, and I think that a
151-month sentence is an appropriate sentence in this
case only because you pled guilty and you didn’t go
to trial on the case.
The district court sentenced Marquez to 151 months’ total impris-
onment, to be followed by three years’ supervised release.
On appeal, Marquez argues that the district court erred in
sentencing him as a career offender because his conviction for at-
tempted second-degree murder doesn’t qualify as a crime of vio-
lence under section 4B1.1(a). But we don’t have to decide whether
the district court made a guideline error if the alleged error made
no difference to the sentence imposed and the ultimate sentence
was reasonable. United States v. Keene, 470 F.3d 1347, 1350 (11th
Cir. 2006). That is, if the district court explained that the sentence
wouldn’t have changed with a different guideline calculation, we
assume that there was an error, calculate the guideline range with-
out the error, and analyze whether the imposed sentence was sub-
stantively reasonable under the new guideline range. Id. at 1349.
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21-12016 Opinion of the Court 5
If it was, then we affirm. Id. at 1350. The burden is on the defend-
ant to prove the unreasonableness of his sentence considering the
record and the section 3553(a) factors. Id.
We agree with the government that any error in applying
the career offender enhancement made no difference to the sen-
tence the district court imposed. The district court expressly stated
that it would’ve imposed the same sentence without the career of-
fender enhancement. So, the question for us is whether Marquez’s
151-month sentence was substantively reasonable.
We review the reasonableness of a sentence for abuse of dis-
cretion. Gall v. United States, 552 U.S. 38, 41 (2007). A district court
abuses its discretion and imposes a substantively unreasonable sen-
tence if it: (1) fails to consider relevant factors that were due signif-
icant weight; (2) gives significant weight to an improper or irrele-
vant factor; or (3) commits a clear error of judgment in considering
the proper factors. United States v. Rosales-Bruno, 789 F.3d 1249,
1256 (11th Cir. 2015).
Without the enhancement, Marquez’s guideline range
would’ve been seventy to eighty-seven months’ imprisonment. In
sentencing Marquez to 151 months’ imprisonment, the district
court stated that it considered the section 3553(a) factors. When it
addressed Marquez at the hearing, the district court explained that
Marquez’s extensive criminal history warranted a higher sentence,
describing it as “terrible” and “violent.” See id. at 1263 (“Placing
substantial weight on a defendant’s criminal record is entirely con-
sistent with [section] 3553(a) because five of the factors it requires
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6 Opinion of the Court 21-12016
a court to consider are related to criminal history.”). The record
supports this conclusion given: (1) Marquez’s fourteen prior con-
victions, including for violent crimes; (2) his thirty-three discipli-
nary actions while incarcerated; (3) his state designations as a
Prison Rape Elimination Act perpetrator, career offender, and ha-
bitual violent offender; and (4) his pending murder charge. We
also note that Marquez’s 151-month sentence fell well below his
statutory maximum of twenty years’ imprisonment. See 21 U.S.C.
§§ 841(b)(1)(C) and 812(c); 21 C.F.R. § 1308.11(c)(11); United States
v. Osorto, 995 F.3d 801, 823 (11th Cir. 2021) (holding that one indi-
cator of reasonableness is whether the sentence falls well below the
maximum penalty).
Marquez argues that his sentence was procedurally unrea-
sonable because the district court mistakenly believed that his
guideline range without the career offender enhancement
would’ve been seventy-seven to ninety-six months’ imprisonment.
Ordinarily, when reviewing for procedural reasonableness, we
consider legal issues de novo and review factual findings for clear
error. United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010).
But under the doctrine of invited error, we’re precluded from re-
viewing the merits of an error, even for plain error, if the appellant
induced or invited the district court to make the error. United States
v. Harris, 443 F.3d 822, 823–24 (11th Cir. 2006). A defendant invites
the district court to err when he “expressly acknowledge[s]” that
the court may take the action of which he complains on appeal or
“expressly requested” that action. United States v. Love, 449 F.3d
1154, 1157 (11th Cir. 2006); United States v. Carpenter, 803 F.3d 1224,
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21-12016 Opinion of the Court 7
1236 (11th Cir. 2015). Here, because Marquez agreed with the gov-
ernment that his guideline range would’ve been seventy-seven to
ninety-six months’ imprisonment, we can’t review this argument.
AFFIRMED.
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