United States v. Rodolfo Candelo Perlaza

211 F. App'x 910
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 21, 2006
Docket05-17198, 05-17199, 06-10052
StatusUnpublished

This text of 211 F. App'x 910 (United States v. Rodolfo Candelo Perlaza) 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. Rodolfo Candelo Perlaza, 211 F. App'x 910 (11th Cir. 2006).

Opinion

*912 PER CURIAM:

More than four years ago, Aníbal Renteria Renteria, Rodolfo Cándelo Perlaza, and William Cuero Mosquera pleaded guilty to possessing with the intent to distribute and conspiring to possess with the intent to distribute five kilograms or more of cocaine aboard a vessel subject to United States jurisdiction, in violation of 46 App. U.S.C. § 1903(a), 21 U.S.C. § 841(b)(l)(A)(ii), and 18 U.S.C. § 2. This is the third appeal of their sentences.

The defendants were originally sentenced to prison terms of between 50 and 57 months. In the first appeal, the government argued that these sentences were too low, because in deciding to apply a minor-role reduction the district court improperly considered the defendants’ personal circumstances (age, family, education, economic circumstances, health, and likelihood of being deported). We agreed that the district court erred and vacated the defendants’ sentences for the district court to reevaluate the minor-role reductions without considering those personal circumstances. United States v. Alegria, No. 03-11641, 99 Fed.Appx. 885 (11th Cir. Mar. 18, 2004).

On remand, the district court sentenced each of the defendants to 135-months in prison, which was consistent with the then-mandatory sentencing guidelines. This time, the district court found that the defendants’ offense conduct did not warrant a minor-role reduction. In the second appeal, the defendants argued that (1) the minor role they played in the drug importation scheme required that the district court adjust their sentences downward, and (2) the 135-month sentence ran afoul of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005): We agreed that the district court had committed a Booker statutory error by sentencing the defendants under a mandatory guidelines regime, and so again we vacated the defendants’ sentences and remanded for the district court to reconsider in light of Booker. United States v. Alegria, 144 Fed.Appx. 801 (11th Cir.2005). We also held that the district court did not clearly err in determining that the defendants were not entitled to a minor-role adjustment. Id.

At their resentencing hearing the defendants asked the district court, in its consideration of the 18 U.S.C. § 3553(a) factors, to sentence them below the advisory guideline range (which was 135 to 168 months in prison) because they played a minor role in the drug importation scheme, had no property interest in the drugs, were not likely to commit additional crimes because of their advanced age and poor physical conditions, and were needed by their families for financial support. At the defendants’ request the district court also considered the evidence they had presented at their prior sentencing hearings. In the end, after considering all the evidence, the district court again sentenced the defendants to 135 months in prison, which was the low end of the advisory guideline range.

This is the defendants’ appeal of their 135-month sentences.

I.

The defendants first contend that the district court applied the sentencing guidelines in a mandatory fashion, contrary to the Supreme Court’s instruction in Booker. They point to some of the district court’s statements made during sentencing, which, according to the defendants, suggest that the court thought it was bound to give the defendants a sentence within the advisory guideline range, even after Booker.

The transcript of the defendants’ third sentencing hearing does not bear out the defendants’ claim. At the hearing, the *913 district court made the following statement as to each defendant:

After considering the advisory sentencing guidelines and all the factors identified in Title 18, United States Code, Section 3553(a), one through seven, the Court finds that the sentence imposed is sufficient but not greater than necessary to comply with the statutory purposes of sentencing.

(R10:307:38, 51, 72) (emphasis added). The district court also said at the joint sentencing hearing:

Where we are going to go from here, I’m not sure. But fortunately we at least know that the guidelines are advisory now and that’s where we are and so we apply them until further news from the Supreme Court about what, if anything, they may do in the future.

Id. at 43 (emphasis added). These statements prove that the district court understood that the guidelines were advisory and sentenced the defendants after considering the guidelines and the section 3553(a) factors, which is what the court must do after Booker.

II.

The defendants next contend that the district court erred in failing to give them a minor-role reduction for their limited part in the drug importation scheme. The government responds that this contention is precluded by the law of the case doctrine.

“The law of the case doctrine bars relitigation of issues that were decided, either explicitly or by necessary implication, in an earlier appeal of the same case.” United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir.2005). Here, the defendants’ minor-role reduction argument was explicitly litigated and rejected in the second appeal from their sentences. The panel in that appeal held:

Based on [the] facts [in this case], none of the defendants has established that he was “substantially less culpable than the average participant” in this drug venture involving 1,513 kilograms of cocaine. See U.S.S.G. § 3B1.2(b) cmt. n. 3(A). None, therefore, has demonstrated that the district court clearly erred in determining that he was not entitled to a minor role adjustment.

Alegria, 144 Fed.Appx. at 803. The defendants do not argue that any of the exceptions to the law of the case doctrine apply to them. Thus, they are barred from raising their minor-role reduction issue again in this appeal.

III.

The defendants’ final argument is that their sentences are unreasonable because: (1) they are too long and are not individualized based on the mitigating evidence; (2) they were based on an impermissible factor, ie., the education the defendants will receive in prison; (3) they are based on a fact that was not in evidence before the district court, ie., that the cocaine on the defendants’ boat was headed to the United States; and (4) they were longer than the sentence given to the captain of the boat who was more culpable. Our review for reasonableness after Booker is “deferential.” United States v. Talley,

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Related

United States v. Gerardo Alegria
144 F. App'x 801 (Eleventh Circuit, 2005)
United States v. Albert Jordan
429 F.3d 1032 (Eleventh Circuit, 2005)
United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)

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Bluebook (online)
211 F. App'x 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rodolfo-candelo-perlaza-ca11-2006.