Case: 16-17304 Date Filed: 02/20/2020 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-17304 ________________________ D.C. Docket Nos. 8:16-cv-01842-RAL-TGW; 8:08-cr-00117-RAL-TGW-1 HECTOR MANUEL ROSALES-DIAZ, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (February 20, 2020) Before HULL, MARCUS and EBEL, ∗ Circuit Judges. HULL, Circuit Judge: After a guilty plea, Hector Rosales-Diaz, a federal prisoner, is serving a 10- ∗The Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by designation. Case: 16-17304 Date Filed: 02/20/2020 Page: 2 of 17 year sentence for unlawful presence in the United States after having been previously removed, in violation of 8 U.S.C. § 1326(a). Rosales-Diaz does not challenge his conviction but appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his 10-year prison sentence. Based on the record as a whole and with the benefit of oral argument, we conclude that Rosales-Diaz has not carried his burden to show that the district court erred in denying his § 2255 motion. I. FACTUAL BACKGROUND A. Offense Conduct and Guilty Plea Between 1999 and 2006, Rosales-Diaz, a native and citizen of Mexico, was convicted of Florida misdemeanor and felony offenses including: (1) grand theft (motor vehicle); (2) obstructing an officer without violence; (3) driver’s license violations; (4) possession of marijuana and methamphetamines; (5) reckless driving; (6) battery; (7) burglary; and (8) leaving the scene of an accident. Rosales-Diaz also has felony convictions for burglary of an occupied dwelling and discharging a firearm from a vehicle. See Fla. Stat. §§ 810.02(3)(a), 790.15(2). On December 9, 2006, Rosales-Diaz was deported to Mexico. At some point, Rosales-Diaz illegally reentered the United States, and on November 20, 2007, was arrested in Florida for driving on a suspended license. On March 18, 2008, a federal grand jury charged Rosales-Diaz with being 2 Case: 16-17304 Date Filed: 02/20/2020 Page: 3 of 17 an alien “found to be voluntarily in the United States” after having been previously convicted of aggravated felony offenses and deported, in violation of 8 U.S.C. § 1326(a) and (b)(2). The government filed a notice that Rosales-Diaz faced a statutory maximum 20-year sentence under § 1326(b)(2) because his Florida convictions for burglary and discharging a firearm from a vehicle constituted aggravated felonies under the immigration statutes. On March 26, 2009, Rosales-Diaz pled guilty. He admitted that he previously pled no contest to burglary and discharging a firearm from a vehicle in Florida state court and confirmed that he received a sentence for those crimes. The district court accepted Rosales-Diaz’s plea. B. Sentencing in 2009 Rosales-Diaz’s presentence investigation report (“PSI”) assigned him a base offense level of 8, pursuant to U.S.S.G. § 2L1.2(a) (2008). The PSI increased the base offense by 16 levels, pursuant to § 2L1.2(b)(1)(A)(ii), because Rosales-Diaz was previously deported following a conviction for a crime of violence, namely Florida burglary of an occupied ...
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