USA v. Daniel Casamayor

Filing

Opinion issued by court as to Appellant Daniel Casamayor. Decision: Affirmed in part, Vacated and Remanded in part. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15365
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20879-UU-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL CASAMAYOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 24, 2016)
Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:

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After pleading guilty, Daniel Casamayor Rojas (“Casamayor”) appeals his
total 262-month sentence on five offenses involving a conspiracy to rob a
marijuana “grow house,” to distribute marijuana, and to use firearms during the
robbery and the drug trafficking. This is Casamayor’s direct appeal raising
multiple sentencing issues.
I. FACTUAL BACKGROUND
A.

Offense Conduct
In September 2013, as part of an undercover sting operation, federal law

enforcement officers approached Anthony Cremades about an opportunity to rob
several “growhouses” operated by a (fictitious) narcotics organization. Cremades
is Defendant Casamayor’s cousin and co-defendant. Defendant Casamayor and
Cremades expressed interest and, during several meetings with the undercover
officers, indicated that they would need firearms and additional associates to
accomplish the armed robbery. Cremades was unwilling to be physically present
during the robbery.
Defendant Casamayor thus recruited co-defendant Maria Perez to assist in
the robbery. Defendant Casamayor asked Perez to find a third gunman. Perez
subsequently recruited co-defendant Guillermo Ferro.
On November 8, 2013, Defendant Casamayor met Perez and Ferro at a gas
station, where they discussed their roles in, and strategy for, the armed robbery.
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The conspirators then drove to meet another individual and to get directions to the
robbery target. Defendant Casamayor, who is a convicted felon, drove in a car that
contained a loaded shotgun, a bulletproof vest, gloves, a baseball bat, a black shirt
with a security logo, and a security officer’s badge. Perez and Ferro drove in a
separate car that contained a loaded pistol, gloves, and two black hats.
Law enforcement arrested the conspirators while they were in route to the
meeting. In post-arrest statements, the conspirators admitted their involvement in
the armed robbery scheme. Defendant Casamayor admitted helping to coordinate
the conspiracy, including recruiting Perez to participate in the robbery and to find
another gunman.
B.

Guilty Plea
Defendant Casamayor pled guilty to five offenses: (1) conspiracy to commit

Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); (2) conspiracy
to possess with intent to distribute less than 50 kilograms of marijuana, in violation
of 21 U.S.C. § 846 (Count 2); (3) being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(3) (Count 3); (4) conspiracy to use
and carry a firearm during and in relation to the above crime of violence and drug
trafficking crime and to possess a firearm in furtherance of these crimes, in
violation of 18 U.S.C. § 924(o) (Count 5); and (5) using and carrying a firearm
during and in relation to the above crime of violence and drug trafficking crime
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and possessing a firearm in further of these crimes, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2 (Count 6).1
C.

Presentence Investigation Report
The Presentence Investigation Report (“PSI”) grouped Counts 1, 2, 3 and 5

together and initially calculated a base offense level using U.S.S.G. § 2K2.1, the
guideline applicable to unlawful possession of firearms and prohibited transactions
involving firearms. The PSI assigned a base offense level of 24, under that
guideline because Casamayor had at least two prior felony convictions for “a crime
of violence or a controlled substance offense.” See U.S.S.G. § 2K2.1(a)(2). Those
convictions were: (1) a 2008 Florida conviction for fleeing/attempting to elude a
police officer or marked car at high speed; and (2) 2012 Florida convictions for
strong-arm robbery and aggravated battery with great bodily harm.
The PSI recommended a two-level increase, pursuant to U.S.S.G.
§ 2K2.1(b)(4)(A), because the pistol found in Perez’s car was stolen. In the “Role
Assessment” section, the PSI recommended a two-level managerial role increase
because Casamayor took over the planning of the robbery from Cremades and
provided the details to Perez and FerroIn calculating the adjusted offense level,
however, the PSI omitted this recommended two-level increase and calculated an
adjusted offense level of 26 under U.S.S.G. § 2K2.1. The PSI also recommended a

1

Count 4 was against only a co-defendant.
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three-level reduction for acceptance of responsibility pursuant to § 3E1.1(a) and
(b), which resulted in a total offense level of 23.
Ultimately, the PSI did not use this total offense level of 23 because
Casamayor was a career offender, pursuant to U.S.S.G. § 4B1.1(a). Casamayor’s
career offender status was based on his two prior Florida convictions, referenced
above, which were deemed crimes of violence under U.S.S.G. § 4B1.2(a).
The career offender table in U.S.S.G. § 4B1.3(c)(3) preset Casamayor’s
guidelines range because he was convicted of violating 18 U.S.C. § 924(c) in
Count 6. The career offender table has three preset ranges depending on whether a
defendant is eligible for an acceptance-of-responsibility reduction. Casamayor had
a three-level reduction for acceptance of responsibility, and therefore the career
offender table set Casamayor’s advisory guidelines range as 262 to 327 months’
imprisonment. See U.S.S.G. § 4B1.1(c)(3). The PSI explained that this preset
range of 262 to 327 months is “inclusive of the 60 month consecutive term
required Count 6,” (the § 924(c) firearm offense).2
The PSI also concluded that Casamayor was an armed career criminal under
U.S.S.G. § 4B1.4(a) and the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1)(B). Because the career offender provision produced the greatest
2

The career offender table in § 4B1.1(c)(3) is designed to provide “a sentence at or near
the statutory maximum” for § 924(c) offenders “by using guideline ranges that correspond to a
criminal history category VI and . . . offense level 34 (assuming a 3-level reduction under
§ 3E1.1 applies).” U.S.S.G. § 4B1.1, cmt. background.
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guidelines range, the PSI used U.S.S.G. § 4B1.1(c)(3) to determine the advisory
guidelines range.
The PSI assigned Casamayor 14 criminal history points and a criminal
history category of VI. Casamayor’s prior Florida convictions included, inter alia:
(1) numerous convictions for possession of a controlled substance and driving with
a suspended license; (2) three battery convictions; (3) a 1999 conviction for
possession of cannabis with intent to sell or deliver; (4) a 2001 conviction for
aggravated assault with a deadly weapon; (5) a 2004 conviction for robbery by
snatching; (6) a 2008 conviction for fleeing/attempting to elude a police officer or
marked car at high speed; (7) a 2012 conviction for strong-arm robbery; (8) 2012
convictions for armed robbery with a firearm or deadly weapon and aggravated
battery with a deadly weapon; and (9) 2012 convictions for strong-arm robbery and
aggravated battery with great bodily harm. Casamayor did not object to the PSI’s
descriptions of any of his prior convictions.
The PSI also determined the statutory maximum penalties for Casamayor’s
five crimes. As to the § 922(g) firearm offense in Count 3, Casamayor was subject
to a statutory maximum sentence of life, pursuant to the ACCA, 18 U.S.C.
§ 924(e). The PSI did not identify which three of Casamayor’s many felony
convictions supported this ACCA enhancement.

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As to the armed robbery conspiracy in Count 1 and the conspiracy to use and
carry firearms in Count 5, Casamayor was subject to a statutory maximum
sentence of 20 years. See 18 U.S.C. §§ 924(o), 1951(a). As to the marijuana
distribution conspiracy in Count 2, Casamayor was subject to a statutory maximum
sentence of 5 years. See 21 U.S.C. § 841(b)(1)(D). The firearm offense in Count 6
carried a mandatory 5-year consecutive sentence. See 18 U.S.C. § 924(c)(1)(A).
Casamayor objected to the following guidelines calculations in the PSI: (1) a
two-level role increase; (2) a two-level increase for the stolen firearm; and (3) the
use of his 2008 fleeing-at-high-speed conviction as a crime of violence to
determine his base offense level under U.S.S.G. § 2K2.1(a)(2) and his status as a
career offender under § 4B1.1(a).
In a footnote in a sentencing memorandum, Casamayor acknowledged thenbinding precedent indicating that vehicular flight convictions were violent felonies
under the ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). See Sykes v.
United States, 564 U.S. 1, 131 S. Ct. 2267 (2011); United States v. Petite, 703 F.3d
1290 (11th Cir. 2013).
D.

Sentencing
At sentencing, the district court first addressed Casamayor’s objection to his

career offender status under the Guidelines, explaining that the resolution of that
issue, and whether he was also an armed career criminal under the ACCA, might
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make it unnecessary to reach Casamayor’s other guidelines objections. The district
court stated that it had spent time examining whether Casamayor “qualified as a
career offender or as an armed career offender.” The district court was “satisfied
that the probation officer got this right, particularly based on the cases that appear
in the footnote of [Casamayor’s] sentencing memorandum.”
Casamayor acknowledged that current precedent did not support his
objection. Wanting to preserve the issue, Casamayor argued that his 2008 Florida
fleeing-at-high-speed conviction was not “a violent crime [that] meets the intent of
the career offender or violent career offender statute.” The district court noted that
Casamayor’s conviction was not for simple fleeing, but for “an aggravated
version” that involved “driving at a high speed.”
The district court overruled Casamayor’s objection, finding that Casamayor
did qualify as a career offender and as an armed career criminal. The district court
said, “[Y]ou go with whichever produces the higher sentence, which in this case
would be the career offender sentence which is how we end up at 262 to 327
months.” In light of this finding, the district court concluded that there was “no
need to deal with the organizer/leader or the stolen gun issue[s].”
Casamayor requested a downward variance to no more than 240 months,
which represented the mandatory minimum sentences of 15 years (180 months) on

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the § 922(g) felon in possession of a firearm offense in Count 3 and 5 consecutive
years (60 months) on the § 924(c) using and carrying a firearm offense in Count 6.
After listening to the parties’ arguments, the district court denied
Casamayor’s request for a downward variance and determined that a sentence at
the low end of the advisory guidelines range was appropriate. The district court
imposed a sentence of (1) 202 months on Counts 1, 3 and 5, to run concurrently;
(2) 60 months on Count 2 to run concurrently with Counts 1, 3 and 5; and (3) 60
months on Count 6 to run consecutively to all the other counts. This yielded a total
sentence of 262 months (202 months plus the consecutive 60 months).
II. DISCUSSION
A.

Offense Level Adjustments
On appeal, Casamayor argues that the district court erred when it failed to

consider and sustain his objections to the offense-level increases for possessing a
stolen weapon, under U.S.S.G. § 2K2.1(b)(4)(A), and for having a managerial role,
under U.S.S.G. § 3B1.1(c). At sentencing, the district court should rule on the
disputed matters unless it determines “that a ruling is unnecessary either because
the matter will not affect sentencing, or because the court will not consider the
matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B).
Here, in compliance with Rule 32(i)(3)(B), the district court determined that
a ruling on these two offense-level increases was unnecessary because they would
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not affect Casamayor’s sentence. As the district court explained, Casamayor’s
advisory guidelines range was not driven by the adjusted offense level calculated
pursuant to Chapters 2 and 3 of the Sentencing Guidelines, but by the preset
guidelines range set out in § 4B1.1(c)’s career offender table. Accordingly, we
conclude that the district court, at the time, did not err in not ruling on the two
offense-level objections regarding the stolen firearm or his role in the offense.
B.

Fifth and Sixth Amendment Sentencing Claim
For the first time on appeal, Casamayor contends that the district court

violated his Fifth and Sixth Amendment rights by imposing a sentence on the
§ 922(g) felon in possession of a firearm offense in Count 3 that was above the tenyear maximum authorized by 18 U.S.C. § 924(a)(2).3 Casamayor argues that he is
not subject to the ACCA’s enhanced penalties in § 924(e) because the government
did not charge three qualifying violent felonies or serious drug offenses in his
indictment or prove them to a jury beyond a reasonable doubt.
Casamayor’s argument is foreclosed by binding precedent. The Supreme
Court has long held that a prior conviction may be used to enhance a defendant’s
sentence even though it is not charged in the indictment or proven beyond a
reasonable doubt. See Almendarez-Torres v. United States, 523 U.S. 224, 239-47,

3

While this Court ordinarily reviews constitutional sentencing issues de novo, where the
defendant fails to raise the constitutional objection at sentencing, our review is for plain error.
United States v. Harris, 741 F.3d 1245, 1248 (11th Cir. 2014).
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118 S. Ct. 1219, 1228-33 (1998); see also Apprendi v. New Jersey, 530 U.S. 466,
489-90, 120 S. Ct. 2348, 2362 (2000) (expressly declining to overrule AlmendarezTorres).
Casamayor contends that Almendarez-Torres has been abrogated by Alleyne
v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013), but this Court has already
rejected that argument. See United States v. Harris, 741 F.3d 1245, 1249-50 (11th
Cir. 2014) (explaining that the Alleyne Court declined to revisit AlmendarezTorres and that “we are not free to do what the Supreme Court declined to do in
Alleyne”). Accordingly, Casamayor has not shown error, much less plain error.
C.

ACCA Enhancement on Count 3
The ACCA enhancement in § 924(e) was applied to only Count 3,

Casamayor’s § 922(g) offense for being a felon in possession of a firearm. Under
the ACCA, a person convicted of being a felon in possession of a firearm under
§ 922(g) who has three prior convictions for a “violent felony” or a “serious drug
offense” is subject to a 15-year mandatory minimum sentence and a maximum life
sentence. See 18 U.S.C. § 924(e)(1). 4 Casamayor argues that his Florida fleeing-

4

The ACCA defines a “violent felony” as any crime punishable by imprisonment for
more than one year that:
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another [the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated
crimes clause”], or otherwise involves conduct that presents a serious potential
risk of physical injury to another [the “residual clause”].
18 U.S.C. § 924(e)(2)(B).
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at-high-speed conviction is no longer a qualifying predicate offense under the
ACCA’s residual clause, 18 U.S.C. § 924(e)(1)(B)(ii).
While Casamayor’s appeal was pending, the Supreme Court decided
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), which held that
the residual clause in the ACCA was unconstitutionally vague. 135 S. Ct. at 2563.
Thus, Casamayor’s fleeing-at-high-speed conviction would not qualify as a
predicate offense under the ACCA’s residual clause. 5
Nonetheless, the government contends that Casamayor has at least three
other prior convictions that qualify under the ACCA’s elements clause, such as his
Florida convictions for strong-arm robbery and armed robbery with a firearm or
deadly weapon in 2012, and for aggravated assault with a deadly weapon in 2001.
The Supreme Court in Johnson did not call into question the remainder of the
ACCA’s definition of a “violent felony,” namely the elements clause and the
enumerated crimes clause. See Johnson, 576 U.S. at ___, 135 S. Ct. at 2563.
The problem in this case, however, is that the district court at sentencing did
not identify which of Casamayor’s prior felony convictions it relied upon to
support the ACCA enhancement. Accordingly, we remand for the district court to
determine in the first instance whether the ACCA-enhanced sentence of 202
5

We review de novo whether Casamayor’s Florida fleeing-at-high-speed conviction is a
violent felony under the ACCA and a crime of violence under the career offender provisions of
the Sentencing Guidelines. United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002);
See United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006).
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months on Count 3 may be supported by any of Casamayor’s other prior felony
convictions and if so under what clause. 6 Without the ACCA enhancement raising
the statutory maximum to life, Casamayor’s punishment on Count 3 cannot exceed
the ten-year statutory maximum under 18 U.S.C. § 924(a)(2).
D.

Career Offender Guideline
Casamayor also argues that, after Johnson, his fleeing-at-high-speed

conviction no longer qualifies as a “crime of violence” for purposes of the career
offender provision in U.S.S.G. § 4B1.2(a)(2). The Supreme Court in Johnson did
not address the career offender provisions of the Sentencing Guidelines. This
Court held in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), that the
residual clause in § 4B1.2(a)(2)’s definition of “crime of violence” is not
unconstitutionally vague in light of Johnson because the vagueness doctrine is
inapplicable to the advisory Sentencing Guidelines. Matchett, 802 F.3d at 1189,
1193-96.
Thus, to the extent Casamayor contends the district court erred in classifying
him as a “career offender” because § 4B1.2(a)(2)’s residual clause is
unconstitutionally vague, his argument is foreclosed by Matchett. Furthermore,
this Court has concluded that the particular aggravated fleeing offense of which
6

The government contends Casamayor’s fleeing-at-high-speed conviction may still
qualify under the elements clause. We do not reach that issue because the district court relied on
the residual clause as to this conviction. The other clause issues should be decided by the district
court in the first instance.
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Casamayor was convicted—fleeing and eluding a police officer by driving at high
speed, in violation of Florida Statutes § 316.1935(3)—constitutes a “crime of
violence” under § 4B1.2(a)(2)’s residual clause. See United States v. Harris, 586
F.3d 1283, 1287-89 (11th Cir. 2009). Because Casamayor’s Florida aggravated
fleeing conviction is a qualifying offense under § 4B1.2(a)(2), the district court did
not err in determining that Casamayor was a career offender under § 4B1.1(a) and
assigning him the preset advisory guidelines range of 262 to 327 months under the
career offender table in § 4B1.1(c).7 Thus, Casamayor has not shown a reversible
error in the district court’s sentencing him as follows on these counts: 202-month
sentences on Counts 1 and 5 to run concurrently, a 60-month sentence on Count 2
to run concurrently with Counts 1 and 5, and a 60-month sentence on Count 6 to
run consecutively to Counts 1, 2 and 5.
III. CONCLUSION
Accordingly, we vacate Casamayor’s sentence on Count 3 and remand for
resentencing on that count. Nothing herein should be read as expressing any
opinion as to the appropriate final sentence.
AFFIRMED IN PART, VACATED AND REMANDED.

7

Although we do not require it, on remand the district court also may want to determine
whether any of Casamayor’s other prior convictions also support his career offender status under
§ 4B1.2 and, if so, under which subsections.
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