United States v. Jose Rivas Ruiz

151 F. App'x 831
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 26, 2005
Docket04-13056; D.C. Docket 03-00503-CR-T-24-EAJ
StatusUnpublished
Cited by2 cases

This text of 151 F. App'x 831 (United States v. Jose Rivas Ruiz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jose Rivas Ruiz, 151 F. App'x 831 (11th Cir. 2005).

Opinion

PER CURIAM.

Appellant Jose Rivas-Ruiz (Rivas), also known as Washington Cifuentes-Guerrero, a federal prisoner, appeals his convictions and sentences for possession with intent to distribute five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 App.U.S.C. § 1903(a), (g) and 21 U.S.C. § 960(b)(l)(B)(ii), and conspiracy to distribute five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 App.U.S.C. § 1903(a), (g), (j) and 21 U.S.C. § 960(b)(l)(B)(ii). On appeal, Rivas argues that (1) the district court erred in denying him a minor-role reduction, pursuant to U.S.S.G. § 3B1.2; (2) in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court erred in setting his base offense level at 38, because he did not admit a particular drug quantity and a jury did not find one beyond a reasonable doubt; and (3) the district court erred in denying his motion for a downward departure, pursuant to U.S.S.G. § 5K2.0. We now affirm Rivas’ conviction and sentence.

I.

Rivas asserts that, in determining whether to award him a minor-role reduction, the district court erroneously considered only his role as compared to that of other participants in the offense and did not consider his role in the relevant conduct for which he was held accountable at sentencing. He asserts that he was held accountable for a “broad criminal conspiracy” involving numerous other people known and unknown to the government and claims that he was less culpable than other participants.

We review a district court’s determination of a defendant’s role in an offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.1999) (en banc). The proponent of a minor-role reduction bears the burden of proving, by a preponderance of the evidence, that he is entitled to a role reduction. Id. at 939.

Under U.S.S.G. § 3B1.2(b), a district court can reduce a defendant’s base offense level by two levels if he was a “minor participant” in the offense. A defendant is a minor participant when he “is less culpable than most other participants,” but his role could not be described as minimal. U.S.S.G. § 3B1.2 at comment, (n.5). In determining a defendant’s role in an offense, a district court should consider two factors: (1) the defendant’s role in the relevant conduct for which he has been held accountable at sentencing, and (2) his role as compared to that of other participants in his relevant conduct. De Varon, 175 F.3d at 940.

With regard to the first factor, drug courier status in and of itself is “not dis-positive of whether a defendant is entitled to or precluded from receiving” a minor-role reduction. Id. at 942. In the drug courier context, the amount of drugs is a “material consideration” in determining the defendant’s role, because the amount of drugs in a courier’s possession “may be the best indication of the magnitude of the courier’s participation in the criminal enterprise.” Id. at 943. In determining the defendant’s role in the drug courier context, the district court should consider the *833 “amount of drugs, fair market value of drugs, amount of money to be paid to the courier, equity interest in the drugs, role in planning the criminal scheme, and role in the distribution.” Id. at 945.

As to the second factor, the district court should only consider other participants who are “identifiable or discernable from the evidence.” The fact that a defendant’s role is less than that of other participants is not dispositive, as it is possible that none of the participants are minor participants. The defendant must prove that he was less culpable than most other participants. Id. at 944.

After reviewing the record, we conclude that the district court did not clearly err in denying Rivas a minor-role reduction. Contrary to Rivas’ assertion, the district court did consider the first factor of the De Varon test: Rivas’ role in the relevant conduct for which he was held accountable at sentencing. The court correctly noted that Rivas was held accountable only for the quantity of cocaine actually found on the vessel on which he was a crew member. With regard to the second factor of the De Varon test, the district court also correctly found that Rivas was not entitled to a reduction. Rivas did not meet his burden to show that he was “less culpable than most other participants.” Id. at 944. To the extent that Rivas points to unidentified other participants in the conspiracy, the district court was not required to consider Rivas’ role as compared to these people because they were not “identifiable or discernable from the evidence.” Id. As to those participants who were identifiable, Rivas could not show that he was less culpable than the other seven crew members on the vessel, excluding the captain. In fact, Rivas admitted at sentencing that he played a comparable role to other crew members.

II.

Rivas argues that, under Blakely/Booker, the district court lacked the authority to set his base offense level at 38, without a jury determination concerning the drug quantity and without his consent to judicial factfinding. Because Rivas did not raise a constitutional objection to the district court’s application of the sentencing guidelines below, we review this issue for plain error only.

Assuming the district court erred, and that error was plain, Rivas cannot show the error affected his substantial rights. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). 1 A defendant’s substantial rights are affected when there is a reasonable probability that the district court would have imposed a different sentence if the guidelines were not mandatory. Id. at 1299. The burden of persuasion is on the defendant. Id. Where the record does not indicate what the district court would have done if the guidelines were not mandatory, the defendant has failed to meet his burden. See id. at 1301.

Here, as in Rodriguez, the record provides no indication that the district court would have imposed a different sentence if it were not constrained by the mandatory nature of the guidelines. Accordingly, Rivas cannot meet his burden to show that any Booker error affected his substantial rights.

III.

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