Case: 14-12111    Date Filed: 04/21/2015   Page: 1 of 5


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-12111
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:11-cr-20429-PAS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

LAZARO RODRIGUEZ GIL,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (April 21, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

      Lazaro Rodriguez Gil appeals his 76-month sentence, imposed below the

Sentencing Guideline range on resentencing based on his substantial assistance to
              Case: 14-12111     Date Filed: 04/21/2015    Page: 2 of 5


law enforcement, after pleading guilty to one count of conspiracy to import five

kilograms or more of cocaine into the United States, in violation of 21 U.S.C.

§ 963. This appeal comes to us following Rodriguez Gil’s second resentencing,

pursuant to United States v. Phillips, 

(11th Cir. 2000), after the

district court granted his 28 U.S.C. § 2255 motion. On appeal, Rodriguez Gil

argues that the district court erred in denying him safety valve relief because the

Guidelines are merely advisory, he never admitted to the validity of his prior

conviction, and the fact of his prior conviction was never submitted to a jury.

      We ordinarily review de novo constitutional challenges to a sentence raised

before the district court, United States v. Weeks, 

, 1259 (11th Cir.),

cert. denied, 

(2013), and issues raised for the first time on appeal for

plain error, United States v. Day, 

, 1264 (11th Cir. 2006). However,

we do not review invited error, even for plain error. United States v. Love, 

, 1157 (11th Cir. 2006).

      Invited error exists when a party’s statements or actions induce the district

court to make an error. 

applied the doctrine of invited error where the

party affirmatively requested or specifically agreed with the challenged action of

the district court. E.g., United States v. Silvestri, 

, 1337 (11th Cir.

2005) (finding that the defendant invited error when his counsel stated that the jury

instructions “covered the bases” and that further elaboration on the elements was


                                           2
               Case: 14-12111     Date Filed: 04/21/2015    Page: 3 of 5


not necessary, and therefore could not challenge the instructions on appeal).

      We have held that, when a district court determines that an out-of-time

appeal is warranted as the remedy in a § 2255 proceeding, the court should:

(1) vacate the criminal judgment from which the out-of-time appeal is to be

permitted; (2) reimpose the same sentence; and (3) advise the defendant of his right

to appeal and the time for filing his notice of appeal. 

.

Additionally, we have stated that the purpose of the § 2255 remedy when a

defendant has lost the opportunity to appeal due to ineffective assistance of counsel

“is to put the defendant back in the position he would have been in had his lawyer

filed a timely notice of appeal.” McIver v. United States, 

, 1331

(11th Cir. 2002) (quotations and alteration omitted).

      The safety valve provision of 18 U.S.C. § 3553 provides that in the case of

certain controlled substance offenses, including offenses under 21 U.S.C. § 963, if

the court finds at sentencing that the defendant meets certain criteria, the district

court must impose a sentence according to the Guidelines, without regard to any

statutory minimum sentence. 18 U.S.C. § 3553(f). One of these criteria is that a

defendant cannot have more than one criminal history point, as determined under

the Sentencing Guidelines. 

We have held that the Supreme

Court’s decision in United States v. Booker, 

, 

, 

(2005), did not render the eligibility criteria for safety valve relief


                                           3
              Case: 14-12111     Date Filed: 04/21/2015    Page: 4 of 5


advisory. See United States v. Brehm, 

, 1299-1300 (11th Cir. 2006)

(reasoning that even after Booker, district courts are obligated to correctly calculate

the defendant’s Guideline range).

      In Almendarez-Torres v. United States, 

, 

, 

(1998), the Supreme Court held that the Government may use the fact

of a prior conviction to enhance a defendant’s sentence without charging that prior

conviction in the indictment or proving it to a jury beyond a reasonable doubt.

United States v. Beckles, 

, 846 (11th Cir. 2009). Subsequently, in

Apprendi v. New Jersey, 

, 490, 

, 2362-63, 

(2000), the Supreme Court held that any fact, other than the fact of a prior

conviction, that increases the penalty for a crime beyond the statutory maximum

must be submitted to a jury and proved beyond a reasonable doubt. More recently,

in Alleyne v. United States, the Court extended Apprendi’s holding to facts that

increase a mandatory minimum sentence. 570 U.S. __, 

, 2155, 

(2013). However, the Court declined to overrule its holding in

Almendarez-Torres in Alleyne. Id. at __, 

n.1. Thus, we have

held that Almendarez-Torres remains binding law even after Alleyne, and findings

regarding the fact of a prior conviction continue to be governed by Almendarez-

Torres. United States v. King, 

, 1280 (11th Cir. 2014).

      Upon review of the record and consideration of the parties’ briefs, we


                                           4
              Case: 14-12111      Date Filed: 04/21/2015   Page: 5 of 5


affirm. As an initial matter, we need not consider the merits of Rodriguez Gil’s

arguments in this case because Rodriguez Gil invited error when he conceded at

the original sentencing hearing that he was not eligible for safety valve relief.

Nevertheless, even if Rodriguez Gil did not invite error, his claims lack merit

because they are foreclosed by binding precedent. Accordingly, the district court

did not err in denying Rodriguez Gil safety valve relief, and we affirm.

      AFFIRMED.




                                           5