USA v. Jesucristo Lopez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 14, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-11508
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-00158-KD-N-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JESUCRISTO LOPEZ,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(June 14, 2012)
Before DUBINA, Chief Judge, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:

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Appellant Jesucristo Lopez appeals his 87-month sentence of imprisonment,
imposed after he pled guilty to one count of conspiracy to distribute and possess
with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 846
and 841(a)(1) and (b)(1)(B), and one count of attempting to smuggle weapons
from the United States, in violation of 22 U.S.C. § 2778 and 18 U.S.C. § 554(a).
On appeal, Lopez argues that his sentence appeal waiver was not knowing and
voluntary, and that the district court erred in applying a two-level guideline
sentencing enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous
weapon. We have already resolved the waiver issue by denying the government’s
motion to dismiss on that ground. Therefore, this opinion only addresses the
sentencing issue.
We review a district court’s findings of fact under § 2D1.1(b)(1) for clear
error, and its application of the Sentencing Guidelines to those facts de novo.
United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006). However, it is “not
necessary to decide guidelines issues or remand cases for new sentence
proceedings where the guidelines error, if any, did not affect the sentence.”
United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006) (internal quotation
marks omitted). To hold that an alleged guideline error was harmless, we consider
whether: (1) the district court would have reached the same result if it had decided
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the guideline issue the other way; and (2) the sentence imposed was reasonable
under the factors in 18 U.S.C. § 3553(a), even if the guideline issue had been
resolved in the defendant’s favor. Id.
Under § 2D1.1(b)(1), a defendant is subject to a two-level enhancement “[i]f
a dangerous weapon (including a firearm) was possessed.” U.S.S.G.
§ 2D1.1(b)(1). The commentary to this section provides as follows: “The
enhancement for weapon possession in subsection (b)(1) reflects the increased
danger of violence when drug traffickers possess weapons. The enhancement
should be applied if the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense.” Id. § 2D1.1 comment. (n.3(A)).
Possession can be shown by demonstrating the defendant actually possessed the
firearm or that he constructively possessed it. United States v. Villarreal, 613 F.3d
1344, 1359 (11th Cir. 2010). Constructive possession means that the defendant
had “ownership, dominion, or control over an object itself or control over the
premises in which the object is concealed.” Id. (internal quotation marks omitted).
As to the reasonableness of the sentence, the district court must impose a
sentence “sufficient, but not greater than necessary, to comply with the purposes”
listed in § 3553(a)(2), including the need to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter
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criminal conduct, and protect the public from the defendant’s future criminal
conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court
must also consider, among other factors, the nature and circumstances of the
offense, the history and characteristics of the defendant, the kinds of sentences
available, the applicable guideline range, and the pertinent policy statements of the
Sentencing Commission. See generally id. § 3553(a)(1), (3)-(7).
“The review for substantive unreasonableness involves examining the
totality of the circumstances, including an inquiry into whether the statutory
factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008). The “weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district
court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (internal
quotation marks omitted). We will not reverse unless “left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks
omitted), cert. denied, 131 S. Ct. 1813 (2011).
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We conclude from the record that any error committed by the district court
in imposing a two-level guideline enhancement under § 2D1.1(b)(1) was harmless
under the circumstances. The record demonstrates that the district court would
have imposed the same 87-month total sentence of imprisonment even if the
guideline issue had been resolved in Lopez’s favor, and his sentence would have
been reasonable if his advisory guideline range had been calculated absent the
enhancement. See Keene, 470 F.3d at 1349. Accordingly, we affirm Lopez’s
sentence.
AFFIRMED.
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