USA v. Daniel Bernal-Perez, No. 11-11591 (11th Cir. 2012)
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Case: 11-11591 Date Filed: 08/15/2012 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _________________________ No. 11-11591 Non-Argument Calender __________________________ D.C. Docket No. 1:10-cr-00103-CAP-GGB-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DANIEL BERNAL-PEREZ, Defendant - Appellant. __________________________ Appeal from the United States District Court for the Northern District of Georgia ___________________________ (August 15, 2012) Before TJOFLAT, CARNES, and KRAVITCH, Circuit Judges. PER CURIAM: Case: 11-11591 Date Filed: 08/15/2012 Page: 2 of 3 Daniel Bernal-Perez pleaded guilty to one count of possession of firearm by an illegal alien in violation of 18 U.S.C. § 922(g)(5). The presentence investigation report recommended a base offense level of 22 under United States Sentencing Guidelines § 2K2.1(a)(3) (Nov. 2010). The PSR added 2 levels under § 2K2.1(b)(1)(A) because the offense involved four firearms; 4 levels under § 2K2.1(b)(5) because Bernal-Perez had engaged in firearm trafficking; and 4-levels under § 2K2.1(b)(6) because he possessed a firearm in connection with drug distribution. The PSR subtracted 3 levels under § 3E1.1 for acceptance of responsibility, which resulted in a total offense level of 29, and it determined that he had a criminal history category of III. For that reason, it recommended a guidelines range of 108 to 120 months in prison. Bernal-Perez did not file any objections to the PSR. At sentencing the government asked the district court to remove the 4-level drug-distribution enhancement under § 2K2.1(b)(6). The court asked BernalPerez s lawyer if he wanted to make any argument on his client s behalf, and Bernal-Perez s lawyer said, No, Your Honor. We would ask that you accept the guideline recommendation as proposed by the United States with the adjustment. The court removed the 4-level enhancement under § 2K2.1(b)(6) and calculated a total offense level of 25, a criminal history category of III, and a guidelines range 2 Case: 11-11591 Date Filed: 08/15/2012 Page: 3 of 3 of 70 to 87 months in prison. The court sentenced Bernal-Perez to 84 months in prison, followed by 36 months of supervised release. Bernal-Perez appeals, contending that the district court miscalculated his guidelines range. He argues that there was not enough evidence to support the 4level enhancement for firearm trafficking under § 2K2.1(b)(5). At sentencing, however, Bernal-Perez asked the court to accept the guideline recommendation as proposed by the United States with the adjustment, and the court did as BernalPerez asked. It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party. United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (quotation marks omitted). If a party induces or invites the district court into making an error, United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998), it precludes a[n appellate] court from . . . reversing, United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005) (quotation marks omitted). Because Bernal-Perez invited the district court to apply the § 2K2.1(b)(5) enhancement, we do not reach the merits of his argument that court erred in doing so. See id. AFFIRMED. 3
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