[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-10307

Non-Argument Calendar

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D.C. Docket No. 1:12-cr-20551-KMM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

EDWIN AGUILAR-IBARRA, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(January 22, 2014)

Before CARNES, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM: 

Edwin Aguilar-Ibarra appeals his 87-month sentence, imposed after he 

pleaded guilty to conspiracy to commit a Hobbs Act robbery and the commission 

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of a Hobbs Act robbery. See 18 U.S.C. § 1951. He challenges the district court’s 

application of a two-level bodily injury enhancement under § 2B3.1(b)(3)(A) of 

the United States Sentencing Guidelines, contending that the court erred in 

concluding that his objection to the enhancement was both untimely and without 

merit. 

I.

In the pre-dawn hours on January 15, 2012, four masked men, including 

Aguilar-Ibarra, entered a Florida warehouse brandishing replica semi-automatic 

pistols. The intruders bound, gagged, and then forced a warehouse employee into 

a back office, where they assaulted him and secured him to a chair with duct tape. 

One of the assailants then used a warehouse forklift to load over half a million 

dollars’ worth of cellular phones into a truck that had been stolen from a nearby

business. 

Aguilar-Ibarra’s presentence investigation report (PSR) calculated a total 

offense level of 27, which included a two-level increase under U.S.S.G. 

§ 2B3.1(b)(3)(A) because a victim of the robbery had sustained bodily injury. In 

support of that enhancement, the PSR indicated that the warehouse employee “was 

taken to the hospital for minor injuries” as a result of the assault. Aguilar-Ibarra’s 

total offense level, when coupled with his criminal history category of I, yielded a 

sentencing guideline range of 70 to 87 months imprisonment. Aguilar-Ibarra did 

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not file any written objections to the PSR within the 14-day period prescribed by 

Federal Rule of Criminal Procedure 32(f)(1). 

At sentencing, defense counsel objected to the bodily injury enhancement, 

asserting that she and the government had agreed that the enhancement should not 

apply because there was no evidence that the warehouse employee had sustained 

any bodily injuries, and because it had not been applied at the sentencing of 

Aguilar-Ibarra’s co-conspirators. The government’s attorney, laboring under the 

mistaken impression that the two-level enhancement required proof of serious 

bodily injury, confirmed that “the victim did not sustain a serious bodily injury.” 

The district court, after recounting the factual allegations in the PSR and 

emphasizing that the two-level enhancement did not require the presence of serious 

bodily injury, asked the parties whether they disputed the PSR’s statement that the 

warehouse employee had sustained minor injuries and was taken to the hospital. 

The government initially responded that it had “no evidence that there were bodily 

injuries,” but quickly clarified that it had no evidence of “the extent of those 

injuries” and that it did not dispute that the victim had suffered minor injuries. 

Defense counsel similarly stated that she was not disputing the factual allegations 

in the PSR, though she was unable to ascertain the nature of the victim’s injuries. 

The district court then questioned the probation officer about the source of 

the information included in the PSR. The probation officer responded that the 

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government had provided that information and that he was “familiar with the 

related case” against Aguilar-Ibarra’s co-conspirators because he “covered [their] 

sentencing hearing.” The probation officer also clarified that the co-conspirators 

had indeed received the bodily injury enhancement at sentencing. Defense counsel 

conceded that she misunderstood what occurred at the co-conspirator’s sentence 

hearing and stated that she had “nothing further” on the enhancement issue. The 

court then overruled Aguilar-Ibarra’s objection as both “untimely” and “without 

merit.” After adopting the PSR in full, the court sentenced Aguilar-Ibarra to a total 

term of 87 months imprisonment. When asked whether he had any objections to 

the court’s factual findings and sentence, Aguilar-Ibarra replied, “No.” 

II.

Aguilar-Ibarra contends that the district court erred in rejecting his objection 

to the bodily injury enhancement as untimely. He asserts that the time limit for 

filing objections to the PSR was inapplicable in this case because he and the 

government agreed that the enhancement should not apply, and, in any event, the 

court exercised its discretion to waive the timeliness requirement when it 

considered and ruled on the merits of his objection.

Rule 32(f)(1) of the Federal Rules of Criminal Procedure provides that 

“[w]ithin 14 days after receiving the [PSR], the parties must state in writing any 

objections, including objections to material information, sentencing guideline

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ranges, and policy statements contained in or omitted from the report.” Fed. R. 

Crim. P. 32(f)(1). After receiving any written objections from the parties, the 

probation officer “may meet with the parties to discuss the objections,” 

“investigate further,” and “revise the presentence report as appropriate.” Fed. R. 

Crim. P. 32(f)(3). At least seven days before sentencing, the probation officer 

must submit the PSR to the court along with “an addendum containing any 

unresolved objections, the grounds for those objections, and the probation officer’s 

comments on them.” Fed. R. Crim. P. 32(g). For good cause shown, however, the 

district court may extend the 14-day deadline for filing objections to the PSR, see

Fed. R. Crim. P. 32(b)(2), or “allow a party to make a new objection at any time 

before sentence is imposed,” Fed. R. Crim. P. 32(i)(1)(D). 

Aguilar-Ibarra did not comply with the 14-day deadline for objecting to the 

contents of the PSR, and there is no merit to his contention that the deadline was

inapplicable because the parties agreed that the bodily injury enhancement should 

not apply. Aguilar-Ibarra takes the position that the procedures mandated by Rule 

32(f) are simply designed to “resolve disputes between the parties” and that it is 

therefore unnecessary to submit written objections in advance of sentencing “to 

correct an undisputed error in the [PSR].”

Rule 32(f)(1), however, clearly provides that all objections to the PSR, 

whether or not they are shared by the parties, must be submitted in writing well in 

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advance of sentencing. And the manifest purpose of Rule 32 as a whole, of which 

the procedures and deadlines mandated by subsection (f) are an integral part, is not 

simply to resolve disputes between the parties; it is to ensure that the district court 

can meaningfully exercise its sentencing authority based on a complete and 

accurate account of all relevant information. See Fed. R. Crim. P. 32(c)–(f)

(mandating the preparation and submission of a PSR in advance of sentencing so 

that a district court can “meaningfully exercise its sentencing authority under 18 

U.S.C. § 3553”); Fed. R. Crim. P. 32 advisory committee notes (1975) (explaining 

that because “presentence reports are important aids in sentencing,” it is “essential 

that the presentence report be completely accurate in every material respect”). The 

deadlines imposed by subsection (f) are meant to facilitate this process by ensuring 

that the probation officer has an adequate opportunity to investigate and resolve 

any potential inaccuracies in the PSR, regardless of whether those inaccuracies are 

perceived by one or both parties. See Fed. R. Crim. P. 32 advisory committee 

notes (1994). Aguilar-Ibarra’s position not only runs counter to the clear import of 

Rule 32(f)(1), but also ignores two fundamental, intertwined tenets of sentencing 

law — that a district court has an independent obligation to “calculate correctly the 

sentencing range prescribed by the Guidelines,” United States v. Gibson, 434 F.3d 

1234, 1243 (11th Cir. 2006) (quotation marks omitted), and that it is therefore “not 

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bound by the parties’ agreements or recommendations” at sentencing, United 

States v. Johnson, 132 F.3d 628, 630 (11th Cir. 1998). 

Although it is certainly true that the district court had the discretion to waive 

the timeliness requirement for good cause, Aguilar-Ibarra did not show cause for 

failing to timely raise his objection to the bodily injury enhancement, and the 

district court did not exercise its discretion to waive the timeliness requirement. 

The court expressly overruled Aguilar-Ibarra’s objection as untimely, and although 

it alternatively addressed the merits of that objection, the court “never indicated 

that it would excuse the [timeliness requirement] and decide the [] issue solely on 

the merits.” See United States v. Milian-Rodriguez, 828 F.2d 679, 683 (11th Cir. 

1987) (district court’s decision to deny a suppression motion both on timeliness 

grounds and on the merits did not excuse the untimeliness of the motion where the 

district court “never indicated that it would excuse the waiver and decide the [] 

issue solely on the merits”). The district court did not err in overruling AguilarIbarra’s objection to the § 2B3.1(b)(3)(A) enhancement as untimely. For that 

reason, we treat the matter as if no objection had been made. 

II.

Aguilar-Ibarra argues that the district court erred in applying the 

§ 2B3.1(b)(3)(A) enhancement because there was no evidence that the robbery 

victim sustained any bodily injury, and the government purportedly conceded the 

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absence of such evidence at sentencing. He also argues that even if the district 

court could rely solely on the factual allegations contained in the PSR, those 

allegations do not support a finding of bodily injury, as defined by the guidelines, 

because the PSR did not describe the precise nature of the victim’s injuries or 

specify that they were of a type that ordinarily would require medical attention. 

As we have discussed, because Aguilar-Ibarra did not file a timely objection 

to the bodily injury enhancement, and because the district court did not waive the 

applicable time limit for good cause shown, we review the present claim for plain 

error only. See United States v. Parrish, 427 F.3d 1345, 1346 (11th Cir. 2005)

(“[W]e review for plain error those issues to which the defendant did not make 

timely objections in the district court.”). Under plain error review, Aguilar-Ibarra 

bears the “burden of establishing that (1) there is an error; (2) that is plain or 

obvious; (3) affecting his substantial rights in that it was prejudicial and not 

harmless; and (4) that seriously affects the fairness, integrity, or public reputation 

of the judicial proceedings.” United States v. Beckles, 565 F.3d 832, 842 (11th 

Cir. 2009) (quotation marks and brackets omitted). “Before an error is subject to 

correction under the plain error rule, it must be plain under controlling precedent or 

in view of the unequivocally clear words of a statute or rule.” United States v. 

Schmitz, 634 F.3d 1247, 1270–71 (11th Cir. 2011) (quotation marks omitted). 

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Section 2B3.1 of the sentencing guidelines, which governs robbery offenses, 

imposes varying degrees of enhancements if “any victim sustained bodily injury.” 

U.S.S.G. § 2B3.1(b)(3). The guidelines call for a two-level enhancement in the 

event of “[b]odily [i]njury,” a four-level enhancement for “[s]erious [b]odily 

[i]njury,” and a six-level enhancement for “[p]ermanent or [l]ife-[t]hreatening 

[b]odily [i]njury.” Id. Bodily injured is defined by the guidelines as “any 

significant injury; e.g., an injury that is painful and obvious, or is of a type for 

which medical attention ordinarily would be sought.” Id. § 1B1.1, comment. 

(n.1(B)). When a defendant challenges one of the factual bases of his sentence, the 

government must prove the disputed fact by a preponderance of the evidence. 

United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009). A district court may, 

however, base its factual findings on undisputed statements in the PSR, because a 

defendant is deemed to have admitted any such statements that he has not objected 

to “with specificity and clarity.” Beckles, 565 F.3d at 843–44 (quotation marks 

omitted). “Indeed, the defendant’s failure to object to conclusory statements in the 

PSI renders those statements undisputed and permits the sentencing court to rely 

upon them without error even if there is an absence of supporting evidence.” Id. at 

844. 

Although Aguilar-Ibarra argued at sentencing that there was no evidence 

that the warehouse employee had sustained any bodily injuries, he did not dispute 

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the PSR’s factual statements that the employee suffered minor injuries as result of 

being assaulted and was taken to the hospital for those injuries. In fact, when the 

district court pointedly asked both parties whether they disputed that portion of the 

PSR, they affirmatively stated that they did not. Because Aguilar-Ibarra did not 

specifically and clearly object to these factual statements contained in the PSR, he 

is deemed to have admitted them and the district court was entitled to rely on them

even in the absence of supporting evidence. See id. at 843–44. 

And based on the undisputed facts in the PSR that the victim was assaulted 

by multiple masked men brandishing replica firearms and then transported to the 

hospital with minor injuries, the district court did not plainly err in concluding that 

the victim sustained a bodily injury within the meaning of the guidelines. The 

court could have reasonably inferred from these undisputed facts that the victim’s

injuries were either “painful and obvious” or “of a type for which medical attention 

ordinarily would be sought.” See U.S.S.G. § 1B1.1, comment. (n.1(B)). AguilarIbarra has not cited any controlling precedent from this circuit or the Supreme 

Court holding otherwise, and the fact that the PSR did not specifically describe the 

nature of the “minor injuries” sustained by the victim does not render the district 

court’s application of the § 2B3.1(b)(3)(A) enhancement plainly erroneous. We 

therefore affirm Aguilar-Ibarra’s sentence. 

AFFIRMED.

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