Case: 14-14571   Date Filed: 08/28/2015   Page: 1 of 17


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14571
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:14-cr-80007-KAM-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

versus



OSCAR IVAN PARDO-GERENA,
a.k.a. Gilborto Alverez,
a.k.a. Gilbert Albert Garcia,

                                                      Defendant - Appellant.

                       ________________________

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

                             (August 28, 2015)
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Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:

      Oscar Pardo-Gerena appeals his 54-month sentence, imposed after he pled

guilty to conspiring to knowingly transport stolen goods and merchandise in

interstate commerce, in violation of 18 U.S.C. §§ 371 and 2314. Mr. Pardo-Gerena

argues the district court erred in calculating the loss amount under U.S.S.G. §

2B1.1, applying a two-level reckless endangerment enhancement during flight

under U.S.S.G. § 3C1.2, and applying a two-level sophisticated means

enhancement under U.S.S.G § 2B1.1(b)(10)(C). In addition, Mr. Pardo-Genera

contends that his sentence was procedurally and substantively unreasonable. After

review of the parties’ briefs and the record, we affirm.

                                          I

      On December 9, 2013, Mr. Pardo-Gerena entered the United States from

Colombia via Miami, Florida, with a ticket providing for a return flight to

Colombia on December 22, 2013. The FBI, as part of an ongoing investigation,

conducted physical and GPS surveillance on Mr. Pardo-Gerena and five other co-

conspirators from December 14 through 17, 2013, as the six men traveled from

Florida to Illinois. To make the trip, Mr. Pardo-Gerena rented a Chrysler minivan

and an Infiniti G37 in Miami using a false identification.




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          Mr. Pardo-Gerena and his co-conspirators made numerous trips from Illinois

to Missouri to conduct nighttime surveillance of the Diamond Family Jewelry

Store. They also obtained advanced tools in preparation for burglarizing the store.

Mr. Pardo-Gerena and his co-conspirators went to the store the evening of

December 21. FBI agents witnessed three individuals walk behind the jewelry

store and heard footsteps and drilling sounds coming from the store’s roof. The

agents spotted three of Mr. Pardo-Gerena’s co-conspirators in the store and

arrested them. A fourth co-conspirator fled, and agents later found him hiding

under a nearby bridge. At this point, only Mr. Pardo-Gerena and one other co-

conspirator had not been apprehended.

          During the arrests, the Infiniti—which had been parked near the store—

pulled out of a parking lot. FBI Special Agent Shelton Hammonds drove up and

tried to cut off the Infiniti, which was traveling at a high speed. Agent Hammonds

then swerved out of the Infiniti’s way to avoid an accident, and the Infiniti

continued down the road. Agent Hammonds tried to follow the Infiniti, but was

unsuccessful. He later found the Infiniti abandoned in a neighborhood near the

store. The FBI arrested Mr. Pardo-Gerena a few days later at the Ft. Lauderdale-

Hollywood International Airport as he was attempting to leave the United States. 1




1
    Law enforcement never apprehended or identified the sixth suspect.
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          On January 14, 2014, a federal grand jury charged Mr. Pardo-Gerena and the

four apprehended co-conspirators with conspiring to transport stolen goods in

interstate commerce in violation of 18 U.S.C. §§ 371 and 2314. Mr. Pardo-Gerena,

pursuant to a plea agreement, pled guilty in April of 2014.

          In September of 2014, the district court held Mr. Pardo-Gerena’s sentencing

hearing. The presentence investigation report determined that Mr. Pardo-Gerena

had a base offense level of 6 pursuant to U.S.S.G. § 2 B1.1(a)(2), because the

offense involved fraud or deceit. The report included a 16-level enhancement for

loss amount under § 2B1.1 because the intended loss amount exceeded $1,000,000

but was not more than $2,500,000. Additionally, the report included a two-level

reckless endangerment enhancement during flight under § 3C1.2; a two-level

sophisticated means enhancement under § 2B1.1(b)(10)(C); a three-level

aggravating role adjustment under § 3B1.1(b); and a three-level reduction for

acceptance of responsibility under § 3E1.1(a) and (b). Mr. Pardo-Gerena objected

to the enhancements for loss amount, sophisticated means, reckless endangerment,

and his role in the offense. 2

          Regarding the calculation for loss, the jewelry store owner testified that the

store contained approximately $1.2 million worth of goods on the night of the

attempted burglary. This approximation was based on the value of inventoried

2
    The district court sustained Mr. Pardo-Genera’s objection as to the aggravating role adjustment.

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items, consignment items, items left at the store for repair, and other store items.

Mr. Pardo-Gerena argued that the owner speculated concerning the value of the

consignment items and the items left at the store for repair. The district court

overruled Mr. Pardo-Gerena’s objection and applied the 16-level enhancement,

finding that the intended loss exceeded $1 million given the owner’s testimony.

      Concerning the sophisticated means enhancement, Mr. Pardo-Gerena argued

that although the attempted burglary might have appeared sophisticated, the

government had not shown that the conspiracy to transport stolen goods in

interstate commerce itself was sophisticated. The district court overruled Mr.

Pardo-Gerena’s objection, finding that the attempted burglary was relevant conduct

under U.S.S.G. § 1B1.3, and it was sufficient that the attempted burglary involved

sophisticated means.

      Next, Mr. Pardo-Gerena objected to the reckless endangerment enhancement

and argued that the evidence was insufficient to find that he had been driving the

Infiniti and that the Infiniti was driven in a manner that created a substantial risk of

death. Agent Hammonds testified that Mr. Pardo-Gerena drove the fleeing Infiniti,

based upon video from that night. The district court found that, because four of the

six suspects were arrested that night, the fleeing Infiniti could have only been

driven by either Mr. Pardo-Gerena or the sixth suspect. Agent Hammonds testified

concerning the location of Mr. Pardo-Gerena and the unidentified sixth suspect


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relative to the location of the Infiniti during the attempted burglary. The district

court overruled the objection, finding that Mr. Pardo-Gerena was driving the

Infiniti at the time of its flight, and the Infiniti created a serious risk of bodily

injury or death to another person during the course of flight.

      Mr. Pardo-Gerena now appeals.

                                          II


      Mr. Pardo-Gerena first argues that the district court erred because it

calculated the $1.2 million intended loss amount based in part on the owner’s

speculation. We review the district court’s factual findings for clear error. See

United States v. Delgado, 

, 1363 (11th Cir.1995). We review the

district court's application of the sentencing guidelines de novo. 

court’s determination regarding the amount of loss for sentencing

purposes is reviewed for clear error.” United States v. Nosrati-Shamloo, 

, 1291 (11th Cir. 2001). “The sentencing judge is in a unique position to

assess the evidence and estimate the loss based upon that evidence” and so “the

court’s loss determination is entitled to appropriate deference.” § 2B1.1 cmt.

n.3(C).

      In calculating the loss amount, “loss is the greater of actual loss or intended

loss.” 

“Intended loss” is “pecuniary harm that was intended to

result from the offense.” 

Where the loss amount is greater than

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$1,000,000 but not more than $2,500,000, a defendant receives a 16-level

enhancement. See § 2B1.1(b)(1)(I). Where the loss amount is greater than

$400,000, but not more than $1,000,000, a defendant receives a 14-level

enhancement. See § 2B1.1(b)(1)(H).


      The district court “need only make a reasonable estimate of the loss

amount.” § 2B1.1 cmt n.3(C). The court does not need to value the loss with

precision. United States v. Dominguez, 

, 676 (11th Cir. 1997).

Although “estimates are permissible, courts must not speculate concerning the

existence of a fact which would permit a more severe sentence under the

guidelines.” United States v. Sepulveda, 

, 890 (11th Cir. 1997)

(emphasis added). The amount of loss must be proven by a preponderance of the

evidence, and the burden must be satisfied with “reliable and specific evidence.”

      The evidence supported the district court’s finding that Mr. Pardo-Gerena

and his codefendants intended to “take out every piece of jewelry that they could

carry.” The district court found the intended loss was approximately $1.2 million.

This sum was based on the owner’s testimony that the store contained $860,338 of

inventoried items, $210,000 of consignment items, $115,000 of items left at the

store for repair, $30,000 of diamond melle, and $10,000 of scrap gold.



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      Mr. Pardo-Gerena argues that the owner’s testimony regarding the value of

the consignment items and the items left at the store for repair amounted to

speculation and that the district court clearly erred by including these values in its

loss calculation. To review this argument, we need only look to evidence of how

the owner distinguished inventoried items and consignment items.

      Inventoried items were owned by the store, kept on-site, and sold to

prospective customers. The store kept track of each inventoried item by using a

stock keeping unit (SKU) number. The owner, using this tracking system, testified

that his store possessed $860,338 worth of inventoried items on the night of the

attempted burglary. Consignment items included merchandise not owned by the

store but kept in the store for vendors. The store would keep temporary custody,

but not ownership, over these items. If a customer was interested in buying a

consigned item, the store would assign an SKU number to the item, thus making it

part of the store’s inventoried items. Then, the store would sell this newly

inventoried item to the customer. The owner testified that the store possessed

$210,000 in consignment items on the night of the attempted burglary. Though the

store did not keep its own financial records for these consigned items, the owner

substantiated this $210,000 valuation using the financial records of one of its

vendors. Because this testimony amounts to specific and reliable evidence, the

district court did not clearly err by relying on such testimony in its loss calculation.


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       Given that the government sufficiently showed that the store possessed more

than $1 million in inventoried and consignment items on the night in question, the

district court properly included those items in the loss calculation. We thus need

not evaluate Mr. Pardo-Gerena’s arguments regarding the value of the other items

in the store.

                                         III


       Mr. Pardo-Gerena next raises a three-pronged argument that the district

court erred in applying the reckless endangerment enhancement. Mr. Pardo-Gerena

argues that there was insufficient evidence to find that he was the driver of the

Infiniti that fled from the law enforcement officers, that the Infiniti driver’s

conduct constituted reckless endangerment during flight, and that the Infiniti driver

knowingly fled from law enforcement officers.

       The government must prove by a preponderance of the evidence the facts

necessary to support a sentencing enhancement. See United States v Askew, 

, 1183 (11th Cir 1999). “This burden requires the trier of fact to believe

that the existence of a fact is more probable than its nonexistence.” United States v.

Almedina, 

, 1315 (11th Cir. 2012) (internal quotation marks

omitted). When the defendant challenges one of the facts supporting his sentence,

the government must prove the disputed fact with “reliable and specific evidence.”

See United States v. Rodriguez, 

, 1305 (11th Cir. 2013).

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      First, we review Mr. Pardo-Gerena’s argument that there was insufficient

evidence for the court to find that he was the driver of the Infiniti. As the district

court explained, at the time the Infiniti was driving away, its driver could have

been only Mr. Pardo-Gerena or the unidentified sixth suspect, because the other

four suspects were already in custody. After reviewing the store’s security video,

Agent Hammonds identified Mr. Pardo-Gerena, based on his gait and clothing, as

the person who fled in the Infiniti. Further, Agent Hammonds testified that the

unidentified sixth suspect (the only other possible driver of the Infiniti) was not

inside the store during the attempted burglary, and there were signs that the sixth

individual fled the area on foot through a white picket fence. Agent Hammonds’

testimony thus provided reliable and specific evidence for the district court to find

that Mr. Pardo-Gerena was more likely than not the Infiniti driver.

      Next, we review Mr. Pardo-Gerena’s argument that there was insufficient

evidence that the Infiniti driver created a substantial risk of death or serious bodily

injury. A reckless endangerment enhancement applies “[i]f the defendant

recklessly created a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer . . . .” U.S.S.G §

3C1.2. “Another person” means “any person, except a participant in the offense

who willingly participated in the flight.” 

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      “Driving a car at a high speed in an area where people are likely to be found

constitutes reckless disregard for others’ safety.” United States v. Washington, 

, 1268 (11th Cir. 2006) (affirming the district court’s application of the

enhancement). Agent Hammonds testified that the Infiniti pulled out of the parking

lot, forcing him to swerve to avoid a collision. Then the Infiniti turned onto a

public street going approximately 50 or 60 miles per hour on icy roads. Thus, the

district court had sufficient evidence to find that Mr. Pardo-Gerena recklessly

created a substantial risk of death or serious bodily injury.

      Finally, Mr. Pardo-Gerena argues that there was no evidence from which the

district court could find that he knew he was fleeing law enforcement officers.

Because he did not object on this basis in the district court, our review is only for

plain error. See United States v. Pantle, 

, 1174 (11th Cir. 2011).

Under plain error review, “(1) there must be error; (2) the error must be plain; (3)

the error must affect the appellant's substantial rights; and (4) the error must

seriously affect the fairness, integrity, or public reputation of judicial proceedings.”

endangerment enhancement applies “only where the defendant

knows he is fleeing from a law enforcement officer who is in pursuit of the

defendant.” United States v. Martikainen, 

, 1194 (11th Cir. 2011). In

Martikainen—upon which Mr. Pardo-Gerena relies—the defendant had absconded


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with his son on a boat traveling from Florida toward the Yucatan Peninsula. Three

days later, law enforcement agents received a tip as to his whereabouts and began

to follow the defendant from a distance of eight miles. The next day, the law

enforcement officers boarded the defendant’s boat, and he fully cooperated with

the officers. The court found that the defendant did not knowingly flee a law

enforcement officer. 

      Here, the evidence supports the finding that Mr. Pardo-Gerena fled because

he knew law enforcement officers were in pursuit. Mr. Pardo-Gerena, in the

Infiniti, sped out of a parking lot just as law enforcement agents came upon the

scene to arrest his co-conspirators. Agent Hammonds tried to use his car to block

Mr. Pardo-Gerena to prevent him from driving away, and then pursued Mr. Pardo-

Gerena, who was fleeing. Given this evidence, the district court did not commit

plain error in finding that Mr. Pardo-Gerena knew that law enforcement was

pursuing him.

                                              IV


      Mr. Pardo-Gerena contends that the district court erred in applying a two-

level sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(10)(C). He

argues that the government presented evidence that only the attempted burglary

was sophisticated, not that the offense of conviction (conspiracy to transport stolen

goods in interstate commerce) was sophisticated.

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      We review for clear error a district court’s factual finding that sophisticated

means were used. See United States v. Barrington, 

, 1199 (11th Cir.

2011). Sophisticated means is defined as “especially complex or especially

intricate offense conduct pertaining to the execution or concealment of an offense.”

§ 2B1.1 cmt. n.9(B). “There is no requirement that each of a defendant’s individual

actions be sophisticated in order to impose the enhancement. Rather, it is sufficient

if the totality of the scheme was sophisticated.” United States v. Ghertler, 

, 1267 (11th Cir. 2010) (affirming a sophisticated means enhancement where

the defendant’s acts included conducting extensive research, using forged

documents and unwitting couriers, and transferring funds to others who withdrew

cash for him).

      In determining a defendant’s specific offense characteristics, the district

court must consider all of the defendant’s “relevant conduct,” as defined in §

1B1.3. When a defendant jointly undertakes criminal activity, “relevant conduct”

includes all acts by the defendant, and all reasonably foreseeable acts of others in

furtherance of the jointly undertaken criminal activity, “that occurred during the

commission of the offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that offense.” §

1B1.3(a)(1)(B) (emphasis added).




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      Mr. Pardo-Gerena’s primary argument—that any sophisticated conduct

occurred in relation to the attempted burglary, but not the conspiracy to transport

the proceeds from the burglary in interstate commerce—is meritless. The

attempted burglary was part of the means by which Mr. Pardo-Gerena and his co-

conspirators sought to obtain the items to transport in interstate commerce, and

thus the burglary was relevant conduct under § 1B1.3(a)(1)(B) as an act done in

preparation for the offense of conviction.

      Further, there was sufficient evidence to find that the totality of Mr. Pardo-

Gerena’s scheme employed sophisticated means. First, Mr. Pardo-Gerena and his

co-conspirators left Florida using false identities, stayed in Illinois, and planned to

rob a jewelry store in Missouri. See § 2B1.1 cmt n.9 (“[L]ocating the main office

of the scheme in one jurisdiction but locating soliciting operations in another

jurisdiction ordinarily indicates sophisticated means.”). Second, they spent one

week surveying the store to study its alarm, telephone, electrical systems, and

wires. Third, they used false identifications to rent cars, storage units, and hotel

rooms, obtained cell phone jammers to disrupt law enforcement’s ability to use

radios, and    purchased advanced tools to disable the store’s alarm, security

cameras, and phone lines to avoid detection. The district court had sufficient

evidence to find that Mr. Pardo-Gerena employed sophisticated means to

perpetrate and conceal his scheme. See 

.


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                                         V

      Mr. Pardo-Gerena asserts that his sentence was procedurally unreasonable

because the district court inappropriately weighed the 18 U.S.C. § 3553(a) factors

and based its sentence on speculation that he was part of an international burglary

ring. In addition, Mr. Pardo-Gerena argues that his sentence was substantively

unreasonable because the district court had “no reason to go above the low end of

the guidelines” based on the facts of the case. We disagree.

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. See Gall v. United States, 

, 41 (2007). In reviewing

the reasonableness of a sentence, we first ensure that the sentence was procedurally

reasonable, meaning that the district court properly calculated the Guideline range,

treated the Guidelines as advisory, considered the §3553(a) factors, did not select a

sentence based on clearly erroneous facts, and adequately explained the chosen

sentence. See 

Once we determine that a sentence is procedurally sound,

we examine whether the sentence was substantively reasonable in light of the

totality of the circumstances. See 

challenging the sentence bears the burden of showing that it is

unreasonable in light of the record and the § 3553(a) factors. See United States v.

Tome, 

, 1378 (11th Cir. 2010). As long as the sentence imposed is a

reasonable one, we will not set the sentence aside merely because we determine


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that a different sentence would have been more appropriate. See United States v.

Irey, 

, 1191 (11th Cir. 2010) (en banc). Rather, we will set aside a

sentence only if we determine, “after giving a full measure of deference to the

sentencing judge, that the sentence imposed truly is unreasonable.” 

court may determine on a case-by-case basis the relative weight to give the

Guidelines range in light of the other section 3553(a) factors.” United States v.

Lozano, 

, 1324 (11th Cir. 2007). Although we do not automatically

presume a within-Guidelines sentence to be reasonable, we expect that such a

sentence is reasonable. See United States v. Hunt, 

, 746 (11th Cir.

2008).

        We reject Mr. Pardo-Gerena’s argument that his sentence is procedurally

unreasonable because the district court found, in part, that he was part of an

international burglary ring. Mr. Pardo-Gerena cites nothing in the record to support

this assertion. The district court did not mention an international burglary ring in

pronouncing Mr. Pardo-Gerena’s sentence, but rather stated that it considered the

parties’ statements, the presentence investigation report, the Sentencing

Guidelines, and the relevant § 3553(a) factors. Mr. Pardo-Gerena has failed to

show that his sentence was procedurally unreasonable. See 

.




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      Mr. Pardo-Gerena finally argues that his sentence was substantively

unreasonable because the district court sentenced him above the low end of his 46

to 57 month advisory Sentencing Guidelines range. Mr. Pardo-Gerena’s 54-month

sentence was within his advisory range and we conclude it was reasonable based

on the facts of the case. He offers no valid argument why the district court’s

within-Guidelines sentence was substantively unreasonable.

                                       VI

      The district court did not err in calculating the intended loss amount or in

applying the sophisticated means and reckless endangerment enhancements. And

Mr. Pardo-Gerena failed to show that his sentence was procedurally or

substantively unreasonable. Accordingly, we affirm Mr. Pardo-Gerena’s sentence.

      AFFIRMED.




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