United States v. Luis Abel Nevarez

683 F. App'x 842
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 30, 2017
Docket16-13930 Non-Argument Calendar
StatusUnpublished

This text of 683 F. App'x 842 (United States v. Luis Abel Nevarez) 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. Luis Abel Nevarez, 683 F. App'x 842 (11th Cir. 2017).

Opinion

PER CURIAM:

Luis Abel Nevarez appeals his 192-month sentence, imposed at the middle of the applicable guideline range, after he pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(ii), 846, and one count of conspiracy to import more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(b)(1)(B), 963. The district court found that Nevarez failed to qualify for relief under the safety-valve provision in U.S.S.G. § 5C1.2 and § 2Dl.l(b)(17) because Nevarez failed to meet two of the five safety-valve criteria— that the defendant did not possess a firearm in connection with the offense and that the offense did not result in death to any person. On appeal, Nevarez argues that the district court erred by not granting him the two-level safety-value reduction in offense level because: (1) the district court misapplied recent revisions to the relevant conduct provisions in the Guidelines and factually erred in concluding that deaths occurred in connection with Nevarez’s conspiracy; and (2) the district erred in finding that, although Nevarez himself did not possess firearms in connection with the conspiracy, he aided and abetted the possession of others involved in the conspiracy. After careful review, we affirm.

In reviewing safety-valve decisions, we review a district court’s factual determinations for clear error and interpretations of the statutes and Sentencing Guidelines de novo. United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir. 2006). A district court’s factual finding is not clearly erroneous if it is plausible in light of the record. United States v. Siegelman, 786 F.3d 1322, 1333 (11th Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 798, 193 L.Ed.2d 765 (2016). Further, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be clearly erroneous. United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006). The defendant bears the burden to prove his eligibility for safety-valve relief. United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004). We may affirm on any ground supported in the record. United States v. Simmons, 368 F.3d 1335, 1342 (11th Cir. 2004); see also Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”).

Under U.S.S.G. § 5C1.2, a defendant who meets the criteria in subsections (a)(1) through (a)(5) is eligible for sentencing without regard to the statutory minimum and for a two-level offense level reduction under U.S.S.G. § 2Dl.l(b)(17). Among those five criteria are that the “defendant did not ... possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense,” U.S.S.G. § 5C1.2(a)(2), and that “the offense did not result in death or serious bodily injury to any person,” id. § 5C1.2(a)(3). “‘Offense,’ as used in [§ 5C.2(a)(2)-(4) ] ... mean[s] the offense of conviction and all relevant conduct.” Id. § 5C1.2, comment! (n.3). “Consistent with § IB 1.3 (Relevant Conduct), the term ‘defendant,’ as used in [§ 5C1.2(a)(2)] limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, *844 procured, or willfully caused.” Id. § 5C1.2, comment, (n.4). 1 However, a co-conspirator’s firearm possession that is reasonably foreseeable may not preclude safety-valve relief. See United States v. Clavijo, 165 F.3d 1341, 1342-43 (11th Cir. 1999) (noting the term “defendant” as used in subsection (2) limits the defendant’s accountability “to his own conduct and conduct that he aided and abetted, counseled, commanded, induced, procured, or willfully caused” (quotation omitted)).

In Rosemond v. United States, the Supreme Court held that a defendant’s culpability for aiding and abetting his confederate’s firearm use in a drug trafficking case requires (1) active participation in the drug trafficking, and (2) advance knowledge that a confederate would carry a gun. — U.S. -, 134 S.Ct. 1240, 1243-45, 188 L.Ed.2d 248 (2014) (analyzing the interplay of 18 U.S.C. § 924(c), which prohibits carrying or using a gun in connection with drug trafficking, with 18 U.S.C. § 2, which holds accountable as a principal a person who “aids, abets, counsels, commands, induces, or procures” a federal offense). The Court held that Rosemond’s participation in the underlying drug deal satisfied aiding and abetting’s requirement of active participation in the drug trafficking. Id. at 1247. Nonetheless, the Supreme Court remanded the case because the district court had not instructed the jury to consider whether Rosemond had advance knowledge that a confederate would carry a gun. Id. at 1243, 1249, 1252. The Court noted that a defendant with this knowledge “align[s] himself with the illegal scheme in its entirety—including its use of a firearm.” Id. at 1249. We’ve held, in another case, that a co-conspirator’s pattern of firearm possession during prior joint undertakings may support the conclusion that the defendant knew his co-conspirator would possess a firearm. See United States v. Thompson, 610 F.3d 1335, 1339 (11th Cir. 2010) (holding that a reasonable jury could conclude that the defendant knew his confederate would possess a firearm during a bank robbery when the defendant participated in a prior bank robbery in which the same confederate was armed).

Here, the district court found that Neva-rez failed to meet two of the five safety-valve criteria—that he did not possess a firearm in connection with the offense and that the offense did not result in death to any person. On the record before us, we cannot say that the district court’s firearm finding was implausible. Siegelman, 786 F.3d at 1333. For starters, Nevarez conceded that he participated in the drug trafficking conspiracy, satisfying the requisite act for aiding and abetting. Rosemond, 134 S.Ct. at 1247. Moreover, the record contains enough evidence to support a finding that Nevarez knew his co-conspirators would possess a firearm during the drug trafficking conspiracy. Id. at 1243, 1249; Thompson, 610 F.3d at 1339.

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Related

United States v. Clavijo
165 F.3d 1341 (Eleventh Circuit, 1999)
United States v. Anthony Simmons
368 F.3d 1335 (Eleventh Circuit, 2004)
United States v. Jerome Wayne Johnson
375 F.3d 1300 (Eleventh Circuit, 2004)
United States v. Javier Izquierdo
448 F.3d 1269 (Eleventh Circuit, 2006)
United States v. Fernando Poyato
454 F.3d 1295 (Eleventh Circuit, 2006)
United States v. Thompson
610 F.3d 1335 (Eleventh Circuit, 2010)
Rosemond v. United States
134 S. Ct. 1240 (Supreme Court, 2014)
United States v. Don Eugene Siegelman
786 F.3d 1322 (Eleventh Circuit, 2015)

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Bluebook (online)
683 F. App'x 842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-luis-abel-nevarez-ca11-2017.