United States v. Astudillo

158 F. App'x 221
Court of Appeals for the Eleventh Circuit·Decided December 9, 2005·No. No. 05-12181; D.C. Docket No. 04-00475-CR-T-30-MSS·Published

Opinion

PER CURIAM:

Appellant, was, as the head engineer, one of eight crew members aboard a fishing vessel the U.S. Navy intercepted outside the Columbian, S.A., fishing zone. The vessel was carrying 245 bales of cocaine, weighing approximately 5,512 kilograms. Appellant and his fellow crew members were brought to Tampa, Florida and indicted. Count One of the indictment charged them with conspiracy to possess with intent to distribute five kilograms or more of cocaine while aboard a vessel, in violation of 46 App. U.S.C. § 1903(j) and 21 U.S.C. § 960(b)(1)(B)(ii); Count Two charged them with possession of such quantity of cocaine with intent to distribute, in violation of 46 App. U.S.C. § 1903(a) and 21 U.S.C. § 960(b)(1)(B)(ii). Appellant pled guilty to both counts, and the district court sentenced him under the Federal Sentencing Guidelines to concurrent prison terms of 135 months.1 He now appeals his sentences, asking that we remand his case for resentencing on two grounds.

The first ground is that the district court erred in determining the offense level under the Guidelines; that is, the court should have reduced that level by two levels under U.S.S.G. § 3B1.2 because he played only a minor role in the criminal activity. He says that (1) his role was that of the mechanic, (2) he had no ownership interest in the drugs, (3) he was paid little in comparison to the value of the drugs, (4) the amount and value of the drugs were substantial, (6) individuals in addition to the crew participated in the smuggling of the drugs, and (7) he was merely a pawn in transporting the drugs.

“This Court has long and repeatedly held that a district court’s determination of a defendant’s role in the offense is a finding of fact to be reviewed only for clear error.”2 United States v. De Varon, 175 F.3d 930, 937 (11th Cir.1999) (en banc). Section 3B1.2 of the Sentencing Guidelines provides for a four-levél decrease to a defendant’s offense level if the defendant was a minimal participant in any criminal activity and a two-level decrease if the defendant was a minor participant in any criminal activity. U.S.S.G. § 3B1.2.

A defendant who is a minimal participant is one who is plainly among the least culpable of those involved in the conduct of a group. U.S.S.G. § 3B1.2, comment, (n.4). A defendant is a minor participant if he is less culpable than most other participants, but whose role cannot ¡be described as minimal. U.S.S.G. § 3B1.2, comment, (n. 3). In determining a defendant’s mitigating role in the offense, the district court “must measure the defendant’s role against the relevant conduct for which [he] was held accountable at sentencing ... [and] may also measure the defendant’s role against the other participants ... in the relevant conduct.” De Varon, 175 F.3d at 945. “The defendant bears the burden of proving his minor role by a preponderance of the evidence.” United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir.2002).

The record in this case supports the district court’s finding that the relevant [223] conduct attributable to appellant was not minor or minimal. With respect to the first prong of the DeVaron analysis, the court held appellant accountable only for the possession of the 5,512 kilograms of cocaine. Therefore, his actual and relevant conduct were one and the same. Where a drug courier’s relevant conduct is limited to his own criminal act, a district court may legitimately conclude that the courier played an important and essential role in that crime. See DeVaron, 175 F.3d at 942-43.

With respect to the second prong of the DeVaron analysis, there is insufficient evidence to show that appellant was a minor or minimal participant in comparison to others. In determining whether a defendant was less culpable than others, “the district court should look to other participants only to the extent that they are identifiable or discernible from the evidence.” Id. at 944. Here, the only persons identifiable from the evidence are appellant and the seven other crew members of the vessel. He argues that there were other individuals involved, but has proffered no evidence supporting this claim. We have made clear that, “where the relevant conduct attributed to a defendant is identical to [his] actual conduct, [he] cannot prove that [he] is entitled to a [mitigating-role] adjustment simply by pointing to some broader criminal scheme in which [he] was a minor participant but for which [he] was not held accountable.” Id. at 941. Additionally, appellant has provided no evidence that he was less culpable than the other seven crew members. He claims only that he was a mechanic. However, he has provided no evidence showing that his responsibilities aboard the vessel were less vital to the enterprise than those of the other crew members, particularly the four who were identified as only “crew members.”

Appellant’s second ground is that his sentence is unreasonable in that the district court did not adequately consider the sentencing factors set out in 18 U.S.C. § 3553(a). He presented § 3553(a) factors to the court for its consideration, and concedes that it considered them. He submits, however, that the court failed to articulate which specific factors it had considered in imposing sentence.

Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 330, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a defendant’s sentence for reasonableness.3 See United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.2005). The factors set forth in § 3553(a) guide this review. Id. at 1246. Those factors include: (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment; (4) the need to protect the public; and (5) the guideline range. See 18 U.S.C. § 3553(a).

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United States v. Astudillo, 158 F. App'x 221 (11th Cir. 2005).

158 F. App'x 221 (United States v. Astudillo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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