United States v. Manuel Reyes

279 F. App'x 802
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 28, 2008
Docket07-13901
StatusUnpublished

This text of 279 F. App'x 802 (United States v. Manuel Reyes) 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. Manuel Reyes, 279 F. App'x 802 (11th Cir. 2008).

Opinion

PER CURIAM:

Manuel Reyes appeals his 120-month sentence imposed after he pled guilty to one count of conspiracy to possess with the intent to distribute five or more kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 App. U.S.C. § 1903(a), (g), (j), 1 and 21 U.S.C. § 960(b)(l)(B)(ii), and one count of possession with the intent to distribute five or more kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 App. U.S.C. § 1903(a), (g), 21 U.S.C. § 960(b)(l)(B)(ii), and 18 U.S.C. § 2. We affirm.

I. BACKGROUND

Reyes was among five crew members on a go-fast boat transporting cocaine from Colombia. When a United States Coast Guard cutter approached the boat in the Eastern Pacific Ocean, the crew set the go-fast boat on fire and jumped into the sea. As the boat began to sink, multiple bales of cocaine floated to the surface. The Colombian crew members were detained and identified; no one admitted to being the captain or master. A total of 1,814 kilograms of cocaine were recovered from the wreckage of the go-fast boat. After being taken into custody, several of the crew members identified one of them as the captain but stated that they took turns navigating.

Following Reyes’s guilty plea, a probation officer prepared his Presentence Investigation Report (“PSI”), which grouped the two counts together, pursuant to U.S.S.G. § 3D1.2(d) (2006). Reyes’s base offense level was calculated at 38, because he was accountable for 1,814 kilograms of cocaine, and his offense involved at least 150 kilograms of cocaine, pursuant to U.S.S.G. § 2Dl.l(e). Reyes received a two-level reduction because he met the criteria in U.S.S.G. § 5C1.2(a)(l)-(5), pursuant to § 2Dl.l(b)(9), and a three-level reduction for his acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. Based on his total offense level of 33 and his criminal history category of I, his Sentencing Guidelines range was 135 to 168 months of imprisonment. The statutory minimum for a violation of 21 U.S.C. § 960(b)(1)(B) was ten years of imprisonment. Because Reyes met the criteria of 18 U.S.C. § 3553(f)(l)-(5), the district judge could impose a sentence within the applicable Sentencing Guidelines range without regard to the statutory minimum. Defense counsel objected to the PSI and argued that Reyes’s role as a transporter qualified him for a two-level, mitigating-role reduction under U.S.S.G. § 3B1.2.

At sentencing, defense counsel argued that Reyes was entitled to a mitigating-role reduction because he was “nothing more than a seaman,” whose role was limited to moving cargo, which was cocaine. R2 at 3. Defense counsel contended that Reyes did not own the cocaine, did not receive a commission based on the amount of cocaine, and had no supervisory authority. Id. at 4. The government proffered that Reyes was to receive a total of thirty million pesos for his participation. Id. at 14.

' The district judge denied Reyes a minor-role reduction and stated that, even though Reyes was “nothing more than a deckhand moving merchandise,” he had not shown that he was less culpable than the other members of the conspiracy who *804 played “essential and important roles to the object of the conspiracy.” Id. at 16, 18. The district judge further commented: “The transporting of these quantities of cocaine across the Pacific Ocean is an essential part of the overall conspiracy. Whether there are five crewmen or three crewmen or 15 crewmen, they’re all essential participants to the transportation aspect of the conspiracy.” Id. at 10. The judge stated that Reyes’s relevant conduct was the criminal activity for which he was being held accountable; consequently, he could not establish a minor role by comparison with the larger criminal conspiracy. Id. at 17.

After considering the factors in 18 U.S.C. § 3553(a) and the Sentencing Guidelines range, the judge sentenced Reyes below the Guidelines range to 120 months of imprisonment for each count to run concurrently, and a total of five years of supervised release. Reyes’s counsel did not object to his sentence. On appeal, he argues that the district judge clearly erred in not awarding Reyes a downward adjustment for his mitigating role in the offense under U.S.S.G. § 3B1.2, because he was merely a transporter or crewman, who did not own, sell, or distribute drugs in exchange for money.

II. DISCUSSION

We review for clear error whether a district judge correctly determined a defendant’s qualification for a Sentencing Guidelines adjustment. United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.), cert. denied, — U.S. —, 127 S.Ct. 2964, 168 L.Ed.2d 284 (2007). A defendant may receive an adjustment for his mitigating role in the offense if he “plays a part in committing the offense that makes him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 comt. n. 3(A). A defendant warrants a four-level reduction for playing a minimal role in an offense, if he is “plainly among the least culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2(a) comt. n. 4. A two-level, minor-role reduction is appropriate if a defendant is less culpable than most other participants, but his “role could not be described as minimal.” U.S.S.G. § 3B1.2(b) comt. n. 5. For defendants whose role in the criminal conduct was between minimal and minor, a three-level reduction is available. U.S.S.G. § 3B1.2. If a defendant with an offense level of 38 receives a mitigating-role adjustment, the defendant receives a four-level reduction. U.S.S.G. § 2Dl.l(a)(3).

A defendant “bears the burden of proving a mitigating role in the offense by a preponderance of the evidence.” United States v. De Varon, 175 F.3d 930, 939 (11th Cir.1999) (en banc). The district judge’s determination concerning a role adjustment is premised on a case-by-case factual inquiry. U.S.S.G. § 3B1.2 comt. n. 3(C). We accord the district judge “considerable discretion in making this fact-intensive determination.” United States v. Boyd, 291 F.3d 1274, 1278 (11th Cir.2002). It is not necessary for the district judge to make specific findings of fact, “[s]o long as the basis of the trial court’s decision is supported by the record and does not involve a misapplication of a rule of law.” De Varon, 175 F.3d at 945.

Under De Varón,

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Bluebook (online)
279 F. App'x 802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-manuel-reyes-ca11-2008.