United States v. Miguel Torres-Rosales

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 7, 2021
• Docket: 20-10595
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10595 Non-Argument Calendar ________________________

D.C. Docket No. 0:19-cr-60264-KMM-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL TORRES-ROSALES,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(January 7, 2021)

Before JORDAN, NEWSOM, and GRANT, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10595 Date Filed: 01/07/2021 Page: 2 of 13

Miguel Torres-Rosales (Torres) pleaded guilty to possession with the intent

to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and received a

within-guidelines sentence of 135 months’ imprisonment. In challenging his

sentence on appeal, Torres argues that the district court clearly erred by denying

him a two-level minor-role reduction under U.S.S.G. § 3B1.2 and abused its

discretion by denying his request for a downward variance. The denial of that

downward variance, he says, resulted in an unreasonable sentence. We disagree

and so affirm.

I

A

After receiving a tip from a confidential source (CS), Homeland Security

Investigations and the Broward County Sheriff’s Office began an investigation into

drug trafficking. As part of the investigation, the CS had a number of

conversations with Luis Armando Saldana-Hernandez (Saldana). The pair set up a

drug deal, but that ultimately failed.

A new deal came together, however, this time involving Torres. The CS and

Saldana agreed on a rate of $7,500 per pound of methamphetamine, and so, on

September 11, 2019, Torres, Saldana, and Lucilia Salomon (Saldana’s girlfriend)

left Oklahoma for South Florida. When the trio arrived in Florida, they met with

an affiliate of the CS. Unbeknownst to them, the CS’s affiliate was an undercover

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agent. They explained to him that the methamphetamines were hidden in a

Volkswagen Jetta. Torres, a trained welder, then asked the undercover agent about

getting access to certain welding tools that Torres needed to take apart the meth-

laden Jetta.

Hours later, Torres, Saldana, and Solomon met up with the undercover agent

again at a gas station before proceeding to another location where they planned to

complete the exchange. At that point, they were joined by the Jetta and its driver,

Jose Eduardo Quintero-Lopez (Quintero). The undercover agent led the group to

another location, and there Torres dismantled much of the Jetta’s interior with

Quintero’s assistance. Torres and Quintero then took bundles of

methamphetamines from the car into another room. There, the undercover agent

weighed them, and Solomon recorded the various weights of the packages. After

the undercover agent verified that the packages indeed contained

methamphetamines, Torres and the others were arrested. Law enforcement

officials seized more than 13.4 kilos of methamphetamine with a substance purity

of 98%.

In a post-arrest statement, Quintero explained that his cousin offered him

$6,000 to drive the Jetta from Mexico to the U.S. He said that Torres was the only

person involved that he knew before the transaction. He also said that on the night

of the exchange, Torres had instructed him to go to the gas station where the group

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from Oklahoma rendezvoused with the undercover agent and to follow them from

there. Torres offered no post-arrest statement.

A grandy jury indicted Saldana, Salomon, Quintero, and Torres for

conspiracy to possess with intent to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) and 846

(Count 1); and possession with intent to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(viii) (Count

2). Torres agreed to plead guilty to the latter in exchange for the dismissal of the

former. At sentencing, the district court noted that Torres’s guidelines range was

135 to 168 months. The court chose the low end of that range for Torres’s

sentence.

Torres now appeals that sentence.

II

We first ask whether the district court clearly erred by denying Torres’s

request for a minor-role reduction under U.S.S.G. § 3B1.2. Then we ask whether

the district court abused its discretion by denying Torres’s request for a downward

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variance and thus gave him an unreasonable sentence. The answer to both

questions is no.

We review a district court’s determination of a defendant’s role in the

offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.

1999) (en banc). A clear error is one that leaves us “with the definite and firm

conviction that a mistake has been committed.” United States v. McDaniel, 631

F.3d 1204, 1209 (2011) (quotation marks omitted). As long as the basis for the

district court’s decision was supported by the record and didn’t involve a

misapplication of the law, “it will be rare for an appellate court to conclude that the

sentencing court’s determination is clearly erroneous.” De Varon, 175 F.3d at 945.

The district court may base its factual findings on undisputed facts in the

presentence investigation report (PSI). United States v. Beckles, 565 F.3d 832, 844

(11th Cir. 2009).

Pursuant to § 3B1.2, a defendant’s offense level may be decreased by two

levels if he was a “minor participant.” U.S.S.G. § 3B1.2(b). A minor-role

adjustment applies to a defendant who is “less culpable than most other

participants in the criminal activity, but whose role could not be described as

minimal.” Id. § 3B1.2, comment. (n.5). The proponent of the adjustment bears the

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burden of proving a minor role in the offense by a preponderance of the evidence.

De Varon, 175 F.3d at 939.

The district court utilizes a two-pronged inquiry to determine whether a role

reduction applies, considering all probative facts involving the defendant’s role and

evaluating the totality of the circumstances. United States v. Wenxia Man, 891

F.3d 1253, 1274 (11th Cir. 2018). It first considers the defendant’s role in relation

to “the relevant conduct for which he has been held accountable at sentencing.” Id.

(quotation marks omitted). Second, it considers the defendant’s “role as compared

to that of other participants in his relevant conduct.” Id. (quotation marks omitted).

To assist courts with this task, Amendment 794 to the U.S. Sentencing Guidelines

added to the commentary for § 3B1.2 a list of non-exhaustive factors for a

sentencing court to consider in determining whether to grant a minor-role

deduction. U.S.S.G. Supp. App. C, Amend. 794. These factors include the “nature

and extent of the defendant’s participation” and the degree to which the defendant

“understood the scope and structure of the criminal activity,” “participated in

planning or organizing the criminal activity,” “exercised . . . or influenced the

exercise of decision-making authority,” and “stood to benefit.” U.S.S.G.§ 3B1.2,

comment. (n.3(C)). The commentary further notes that the fact that a defendant

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performs an “essential or indispensable role in the criminal activity is not

determinative.” Id.

Not all participants are necessarily relevant to this inquiry, and the

defendant’s role is measured only against other participants involved in the

relevant conduct attributed to the defendant. De Varon, 175 F.3d at 944. Further,

district courts may look to other participants only to the extent that they are

identifiable or discernable. Id. “The fact that a defendant’s role may be less than

that of other participants engaged in the relevant conduct may not be dispositive of

role in the offense, since it is possible that none are minor or minimal participants.”

Id. Finally, the amount of drugs involved in a transaction may be a material

consideration in assessing a defendant’s role in his relevant conduct. Id. at 943.

Specifically, a large amount of drugs in a defendant’s possession may be the best

indication of the magnitude of his participation in the criminal enterprise. Id.

In Cruickshank, we held that a categorical bar to granting a minor-role

reduction for defendants transporting large amounts of drugs was legal error and

reaffirmed our holding in De Varon that a minor-role reduction should be based on

the totality of the circumstances. United States v. Cruickshank, 837 F.3d 1182,

1194–95 (11th Cir. 2016). In so reasoning, we noted that Amendment 794 didn’t

materially alter § 3B1.2, but rather, “clarified that a defendant could be considered

for a minor-role adjustment in many circumstances, none of which turn on drug

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quantity.” Id. at 1195; see U.S.S.G. § 3B1.2, comment. (n.3(C)). We made clear

that district courts can consider drug quantity at sentencing, but this factor can’t be

the only factor used to determine the sentence. Cruickshank, 837 F.3d at 1194–95;

see also United States v. Presendieu, 880 F.3d 1228, 1250 (11th Cir. 2018).

Here, Torres was held accountable for only his involvement in the crime—

i.e., the possession with intent to distribute over 13 kilograms of

methamphetamine. Beckles, 565 F.3d at 843; Man, 891 F.3d at 1274. In relation

to that conduct, his role wasn’t a minor one, nor was the district court’s

determination supported by one factor to the exclusion of all others. He met with

Saldana in Oklahoma, drove Saldana and Salomon most of the way to Florida, told

Quintero to meet him at the gas station and follow him from there, and

disassembled much of the Jetta’s interior to access the hidden bundles of

methamphetamine. And he expected to benefit from all that work—he was set to

be paid $6,000 for his role in the crime. Man, 891 F.3d at 1274; Beckles, 565 F.3d

at 843. We again note that the sheer amount of drugs an individual possesses can

be a material consideration in this inquiry, De Varon, 175 F.3d at 943, and here,

Torres possessed over 13 kilos—nearly 30 pounds—of almost perfectly pure

methamphetamine. None of that suggests to us that the district court clearly erred

on this front.

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Comparing Torres’s role in the offense to the others involved does nothing

to change that conclusion. Take Salomon, the only one of Torres’s codefendants

who received a minor-role reduction. Though she also drove part of the way from

Oklahoma to Florida, she did so because Saldana didn’t have a driver’s license.

Moreover, she stood to receive a lesser benefit from the deal, getting only part of

Saldana’s cut. On the day of the sale, her only contribution was to record the

weights of the drug bundles. Torres, in contrast, directed Quintero on the day of

the deal, disassembled the Jetta, and expected $6,000 from the deal. As for

Quintero, he was also sentenced to 135 months. Both he and Torres expected the

same amount of money from the sale. And both played a key role in the deal—

Quintero driving the Jetta from Mexico to Florida, and Torres cutting apart the

interior of the Jetta using his welding skills. And Torres exercised some control

over Quintero’s movements on the day of the deal by telling him where to go (the

gas station) and what to do (follow them from there to the next location). That

comparison doesn’t help Torres. Nor does looking at Saldana. Though Saldana

had a prior tie to the CS and the buyer’s side of the deal, Torres apparently

provided the link to Quintero and the supplier’s side. Looking at his co-

conspirators, we can’t say that Torres was “less culpable than most other

participants in the criminal activity . . . .” U.S.S.G. § 3B1.2, comment. (n.5).

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In sum: The district court didn’t clearly err in determining that Torres didn’t

merit a minor-role reduction.

B

In determining whether a sentence is reasonable, we review only for an

abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). “The party

challenging [the] sentence has the burden of showing that the sentence is

unreasonable in light of the entire record, the [18 U.S.C.] § 3553(a) factors, and the

substantial deference afforded [to] sentencing courts.” United States v. Rosales

Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). We ordinarily expect a sentence

within the guideline range to be reasonable. United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008). Likewise, a sentence well below the statutory

maximum indicates reasonableness. United States v. Dougherty, 754 F.3d 1353,

1362 (11th Cir. 2014).

In reviewing the reasonableness of a sentence, we first consider whether the

district court committed any procedural error, such as failing to calculate or

improperly calculating the guideline range. Gall, 552 U.S. at 51. We ensure that

the district court treated the Sentencing Guidelines as advisory, considered the

§ 3553(a) factors, didn’t select a sentence based on clearly erroneous facts, and

adequately explained the chosen sentence. Id. Next, we consider the substantive

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reasonableness of a sentence, taking into account the totality of the circumstances.

Id.

On substantive-reasonableness review, we may vacate the sentence only if

we are “left with the definite and firm conviction that the district court committed a

clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence

that lies outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation

marks omitted). “[T]he district court has considerable discretion in deciding

whether the § 3553(a) factors justify a variance and the extent of such a variance.”

United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). The weight

accorded to any one § 3553(a) factor is a matter “committed to the sound

discretion of the district court,” and it may attach “great weight” to one factor over

others. Rosales-Bruno, 789 F.3d at 1254 (quotation marks omitted). The district

court isn’t required to explicitly address each of the § 3553(a) factors or all of the

mitigating evidence. See United States v. Amedeo, 487 F.3d 823, 833 (11th Cir.

2007); see also Gonzalez, 550 F.3d at 1324 (similar).

As for procedural reasonableness, the only argument Torres offers on appeal

depends on his assertion that the district court erred in denying his request for a

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minor-role reduction. For the reasons given above, that wasn’t error. Torres’s

sentence was thus procedurally reasonable.

Torres’s 135-month sentence is also substantively reasonable. Even if the

district court didn’t expressly list the § 3553(a) factors it considered, the record

reflects that the court considered those factors in its sentencing process. We’ve

held before that “[a]n acknowledgment the district court has considered the

defendant’s arguments and the § 3553(a) factors will suffice.” Gonzalez, 550 F.3d

at 1324. Here, the district court expressly stated that it had “considered the

statements of all parties, the presentence report which contains the advisory

guidelines and the statutory factors as set forth in Title 18, United States Code,

Section 3553(a).” Distilled, Torres’s arguments express a disagreement with how

the district court weighed the factors. But a defendant’s mere disagreement with

the district court’s weighing of the § 3553(a) factors provides no basis for us to

undo the work of the district court. See United States v. Valnor, 451 F.3d 744, 752

(11th Cir. 2006); see also United States v. Saac, 632 F.3d 1203, 1214–15 (11th Cir.

2011) (“It is within the district court’s discretion to weigh the § 3553(a) factors,

and we will not substitute our judgment in weighing the relevant statutory factors.”

(quotation marks and alterations omitted)).

Separately, Torres argues that the difference in sentences for “ice”—i.e.,

methamphetamine that is at least 80% pure, see U.S.S.G. § 2D1.1 n.(C)—and

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methamphetamine is much like the disparity in sentencing between crack cocaine

and powder cocaine that Congress and the Sentencing Commission have

addressed. See, e.g., Dorsey v. United States, 567 U.S. 260, 264 (2012) (describing

legislation that “reduc[ed] the crack-to-powder cocaine disparity from 100-to-1 to

18-to-1”); Dillon v. United States, 560 U.S. 817, 821 (2010) (describing the 100-

to-1 crack-to-powder ratio the Commission originally used in promulgating the

guidelines and noting that after some time, the Commission “sought to alleviate the

disparity produced by this ratio”). Whatever the merits of that analogy, it doesn’t

change the outcome here. Though of course the guidelines are only advisory, see,

e.g., Kimbrough v. United States, 552 U.S. 85, 91 (2007), we don’t fault the district

court for heeding that advice here. And in any event, even if we disregarded the

distinction between ice and methamphetamine, the purity and quantity of the drugs

involved here would have resulted in Torres receiving the same base offense level.

See U.S.S.G. § 2D1.1(c)(1).

In short, Torres has failed to meet his burden to show that his sentence,

which falls at the low end of the guideline range and well below the statutory

maximum sentence of life-in-prison, is unreasonable. Accordingly, we affirm.

AFFIRMED.