Case: 15-15283   Date Filed: 01/26/2017   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15283
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:13-cr-00614-EAK-EAJ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

PEDRO RAMIREZ,

                                                          Defendant-Appellant.

                       ________________________

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

                             (January 26, 2017)

Before ED CARNES, Chief Judge, HULL and WILSON, Circuit Judges.

PER CURIAM:
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      Pedro Ramirez pleaded guilty to failure to register as a sex offender in

violation of 18 U.S.C. § 2250(a). The presentence investigation report

recommended a base offense level of 14 under § 2A3.5(a)(2) of the United States

Sentencing Guidelines (2014) because Ramirez met the criteria as a Tier II

offender. The PSR also recommended an eight-level increase under

§ 2A3.5(b)(1)(C) of the guidelines because he had committed a sex offense against

a minor during the period when he had failed to register as a sex offender. After

taking into account Ramirez’s acceptance of responsibility and calculating his total

offense level to be 19, and after assigning Ramirez with a criminal history category

of IV, the resulting advisory guidelines range was 46 to 57 months imprisonment.

      Ramirez appeals that sentence, contending that (1) the district court erred in

classifying him as a Tier II sex offender, (2) the district court erred in applying the

eight-level enhancement for committing a sex offense against a minor while failing

to register as a sex offender, and (3) that his sentence was procedurally

unreasonable. As to his first two arguments, we review de novo the district court’s

interpretation and application of the sentencing guidelines and we review for clear

error its factual findings. See United States v. De La Cruz Suarez, 601 F.3d 1202,

1219 (11th Cir. 2010). As for his third argument, we review for abuse of

discretion the procedural reasonableness of a sentence. See United States v.

Register, 678 F.3d 1262, 1266 (11th Cir. 2012).


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                                         I.

      Section 2A3.5(a)(2) of the guidelines provides for a base offense level of 14

for a defendant who “was required to register as a Tier II offender.” U.S.S.G.

§ 2A3.5(a)(2). The definition of “Tier II sex offender” includes a person who was

convicted of a sex offense that is both “punishable by imprisonment for more than

1 year” and “comparable to” the offense of “abusive sexual contact (as described in

section 2244 of title 18)” when “committed against a minor.” 42 U.S.C.

§ 16911(3). The crime of abusive sexual contact under § 2244 includes

“engage[ing] in sexual contact with another person without that other person’s

permission.” 18 U.S.C. § 2244(b).

      In 2002 Ramirez was found guilty of committing Florida sexual battery

(slight force) and found not guilty of unlawful sexual activity with a minor.

Florida’s crime of sexual battery (slight force) is governed by § 794.011(5) of the

Florida code which, at that time, provided:

      A person who commits sexual battery upon a person 12 years of age
      or older, without that person’s consent, and in the process thereof does
      not use physical force and violence likely to cause serious personal
      injury commits a felony of the second degree, punishable as provided
      in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115.




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Fla. Stat. § 794.011(5) (West 2000).1 Ramirez contends that the fact that he was

found not guilty of unlawful sexual activity with a minor demonstrates that the

sexual encounter in that case was consensual, and that the only reason he was

convicted of sexual battery was because the 16-year-old victim could not legally

provide consent. That distinction, however, does not matter. Ramirez was

convicted of sexual battery, which required that the jury find that the contact was

not consensual. The district court did not err in finding that Ramirez qualified as a

Tier II offender because of his prior conviction for sexual battery, a crime

comparable to “abusive sexual contact” against a minor.

                                              II.

       Ramirez also contends that the district court erred in applying the eight-level

enhancement for committing a sex offense against a minor while unregistered.

Section 2A3.5(b)(1)(A) of the guidelines provides that “[i]f, while in a failure to

register status, the defendant committed . . . a sex offense against a minor, increase

by 8 levels.” Ramirez argues that the enhancement was improper because the only

evidence supporting the facts underlying it was unreliable hearsay. 2



       1
        While Florida sexual battery is not limited to victims who are minors, Ramirez
concedes that the victim of his Florida crime was 16 years old.
       2
        He also contends that the district court should not have allowed the hearsay to be
admitted because he was deprived of the opportunity to confront the declarant. That argument
has no merit and is foreclosed by our precedent. See United States v. Cantellano, 430 F.3d 1142,
1146 (11th Cir. 2005) (“The right to confrontation is not a sentencing right.”).
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      “When the government seeks to apply an enhancement under the Sentencing

Guidelines over a defendant’s factual objection, it has the burden of introducing

sufficient and reliable evidence to prove the necessary facts by a preponderance of

the evidence.” United States v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013)

(quotation marks omitted). “[A] court may rely on hearsay at sentencing, as long

as the evidence has sufficient indicia of reliability, the court makes explicit

findings of fact as to credibility, and the defendant has an opportunity to rebut the

evidence.” United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998). A

district court’s failure to make explicit findings about the reliability of a witness’

hearsay testimony, however, does not require reversal when the reliability is

apparent from the record. United States v. Docampo, 573 F.3d 1091, 1098 (11th

Cir. 2009).

      The conduct at issue for the eight-level enhancement involved Ramirez’s

contact with a 12-year-old girl, and the hearsay Ramirez challenges is the

statements the girl made to her mother and to a law enforcement investigator. At

the sentence hearing the child’s mother testified that Ramirez was staying at her

home one night when she woke up to find him standing outside of her daughter’s

bedroom. After she went into that bedroom, her daughter, who was in a distressed

state, told her that Ramirez had been in that room and had been groping her. The

mother reported Ramirez to the police, and the investigator who responded to that


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report also testified at the sentence hearing that the child, who was visibly upset

when he spoke to her, had told him that Ramirez had groped her.

      While the district court did not explicitly state that it found the hearsay

reliable, the consistency of the child’s statements to both her mother and the

investigator, along with their testimony that the child was visibly upset that night,

make the reliability of her statements apparent from the record. The district court

did not err in allowing the hearsay testimony to be admitted into evidence and

concluding that the necessary facts had been established by a preponderance of the

evidence at the sentence hearing.

      Ramirez also argues that the eight-level enhancement was improper because

he was not convicted of a sex offense for his actions toward the 12-year old child.

After the mother reported Ramirez to law enforcement, he was charged with lewd

or lascivious molestation but was convicted only of felony battery. He now

contends that for the eight-level enhancement to apply he had to have been

convicted of a sex offense against a minor. The language of the guideline

enhancement, however, does not require a conviction. It instead calls for an

enhancement if the defendant “committed” a sex offense against a minor.

See U.S.S.G. 2A3.5(b)(1)(C); see also United States v. Lott, 750 F.3d 214, 220–21

(2d Cir. 2014) (“Neither 42 U.S.C. § 16911(5) nor U.S.S.G. § 2A3.5(b)(1)(C)

require a sex offense conviction in order to apply an eight-level increase pursuant


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to section 2A3.5; conduct amounting to a ‘sex offense’ is enough.”). As a result,

the district court did not err in imposing the eight-level enhancement even though

there was no sex offense conviction for the conduct.

                                          III.

      Finally, Ramirez contends that his sentence is procedurally unreasonable.

“A sentence may be procedurally unreasonable and therefore an abuse of discretion

if the court commits a significant procedural error such as failing to consider the

Guidelines or miscalculating the Guideline range, failing to give due weight to the

[18 U.S.C.] § 3553(a) factors, or failing to explain the reason for a chosen

sentence.” United States v. Bonilla, 579 F.3d 1233, 1245 (11th Cir. 2009).

      Ramirez contends that his sentence is procedurally unreasonable because the

district court incorrectly calculated the guidelines range and failed to consider the

§ 3553(a) factors. As we have already noted, the two guidelines challenges

Ramirez makes — his classification as a Tier II offender and the imposition of the

eight-level enhancement — fail. As for his contention that the district court failed

to consider the § 3553(a) factors, at the sentence hearing the district court

explicitly stated that it had considered all seven factors in § 3553(a) as well as

Ramirez’s arguments. The district court did not commit procedural error in

sentencing Ramirez.

      AFFIRMED.


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