USA v. Thomas Antonio Stuart

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11760
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS ANTONIO STUART,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:23-cr-20064-RNS-1
____________________
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2 Opinion of the Court 23-11760
Before WILLIAM PRYOR , Chief Judge, and J ORDAN and L AGOA , Cir-
cuit Judges.
PER CURIAM:
Thomas Stuart appeals his sentence of 60 months of impris-
onment imposed after he pleaded guilty to three counts of bringing
an alien to the United States for commercial and private financial
gain. 8 U.S.C. § 1324(a)(2)(B)(ii). He argues that the five-year man-
datory minimum did not apply to him because he was a first-time
offender. The United States moves for a summary affirmance. Be-
cause “the position of [the United States] . . . is clearly right as a
matter of law so that there can be no substantial question as to the
outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969), we grant that motion and affirm.
Section 1324(a)(2) provides a mandatory-minimum sentence
of three years of imprisonment for “a first or second violation of
subparagraph (B)(i) or (B)(ii),” and it provides a mandatory-mini-
mum sentence of five years “for any other violation.” 8 U.S.C.
§ 1324(a)(2). In Ortega-Torres, we held that an offender commits a
separate violation for each alien brought to the United States for
commercial or financial gain. United States v. Ortega-Torres, 174 F.3d
1199, 1201 (11th Cir. 1999).
Ortega-Torres controls. Stuart pleaded guilty to violating sec-
tion 1324(a)(2)(B)(ii) three times by smuggling three aliens into the
United States for financial gain. Each alien counted as a separate
violation, id., so Stuart was subject to the five-year mandatory
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23-11760 Opinion of the Court 3
minimum on his third count of conviction. See 8 U.S.C.
§ 1324(a)(2). Stuart disagrees with our decision in Ortega-Torres, but
that precedent controls our resolution of this issue. See United States
v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).
Because the position of the United States is clearly correct
as a matter of law, we grant the motion for summary affirmance.
Groendyke Transp., Inc., 406 F.2d at 1162.
AFFIRMED.
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