United States v. Sebastian Gil-Ramirez

686 F. App'x 651
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 20, 2017
Docket16-13742 Non-Argument Calendar
StatusUnpublished

This text of 686 F. App'x 651 (United States v. Sebastian Gil-Ramirez) 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. Sebastian Gil-Ramirez, 686 F. App'x 651 (11th Cir. 2017).

Opinion

PER CURIAM:

Sebastian Gil-Ramirez appeals his 48-month sentence after pleading guilty to one count of possessing cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1). He ai-gues that he was improperly denied safety-valve relief and a minor role reduction, and that his sentence is substantively unreasonable. Upon review of the record and consideration of the parties’ briefs, we affirm. ■

I

Mr. Gil-Ramirez was arrested in February of 2016 at Fort Lauderdale-Hollywood International Airport when Customs and Border Patrol officers discovered 2,414 grams of cocaine in the false bottom of his suitcase. Mr. Gil-Ramirez, who is a Colombian citizen and permanent legal resident of the United States, claimed that he received a call from someone named “Andres” in Colombia who asked him if he was interested in traveling to that country to make some money. Mr. Gil-Ramirez knew he was likely to be involved in illegal activity, and brought along his girlfriend to minimize suspicion. “Andres” paid for all of Mr. Gil-Ramirez’s transportation and hotel costs, and told him that he would be carrying a suitcase containing cocaine back to the United States. After examining the suitcase, Mr. Gil-Ramirez agreed to transport the drugs in exchange for $5,000. He was arrested when the drugs were discovered upon his arrival at the airport.

. A grand jury indicted Mr. Gil-Ramirez on charges of importing .cocaine into the United States in violation of 21 U.S.C.§§ 952(a) and 960(b)(3) (Count One), and possessing cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Two). Pursuant to a plea agreement, he pled guilty to Count Two, and Count One was dismissed. Mr. Gil-Ramirez agreed to provide the government with a written statement truthfully setting forth all information and evidence he had concerning the offense.

The PSI recommended a base-offense level of 26 under U.S.S.G. § 2D1.1, as well as a three-level decrease under § 3El.l(a) and (b) for acceptance of responsibility. The PSI recommended a total offense level of 23 and a criminal history category of I, resulting in an advisory guideline range of 46 to 57 months’ imprisonment.

In his objections to the PSI, Mr. Gil-Ramirez requested a two-level reduction under the “safety-valve” provision of U.S.S.G. § 5C1.2, and a minor-role reduction. At the sentencing hearing, Mr. Gil-Ramirez also requested that the district court grant a downward variance from the advisory guideline range. The district court ultimately denied his request for the reductions and sentenced him to 48 months of imprisonment, to be followed by three years of supervised release.

*653 II

“When reviewing the denial of safety-valve relief, we review for clear error a district court’s factual determinations.” United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004). The safety-valve provision implements 18 U.S.C. § 3553(f) and requires a district court to sentence a defendant “without regard to any statutory minimum sentence” if the defendant meets five criteria. See U.S.S.G. § 5C1.2. A defendant’s base offense level may also be reduced by two levels if all five of the criteria are met. See U.S.S.G. § 2D1.1(b)(17). The burden is on the defendant to show that he has met each of the safety-valve factors. See Johnson, 375 F.3d at 1302. The fifth factor—the only one at issue here—requires that:

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

U.S.S.G. § 5C1.2(a)(5).

“This final factor is a ‘tell-all’ provision: to meet its requirements, the defendant has an affirmative responsibility to truthfully disclose to the government all information and evidence that he has about the offense and all relevant conduct.” Johnson, 375 F.3d at 1302 (internal quotation marks and citation omitted) (emphasis in original). The defendant has a burden to come forward and supply the government with all the information that he possesses about his involvement in the crime, including information relating to the involvement of others and the chain of the narcotics distribution. See id.

Mr. Gil-Ramirez argues that the district court did not fulfill its duty as factfinder and instead merely relied on the government’s assessment of his factual proffer. The record shows, however, that the district court considered at length both the government’s and Mr. Gil-Ramirez’s arguments at the sentencing hearing. See D.E. 33 at 5-12. After independent review of Mr. Gil-Ramirez’s written statement and the record, the court found—by a preponderance of the evidence—that Mr. Gil-Ramirez had not truthfully provided to the government all the information that he possessed concerning the offense. See id. at 12. Nothing in the record suggests that the district court clearly erred in making this determination and, as a result, we affirm its denial of safety-valve relief.

Ill

We review for clear error the district court’s denial of a minor role reduction. See United States v. Moran, 778 F.3d 942, 980 (11th Cir. 2015). A defendant may receive a two-level decrease under the Sentencing Guidelines if he was “a minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b). A minor participant “is less culpable than most other participants, but [his] role could not be described as minimal." U.S.S.G. § 3B1.2, comment. (n.5). A defendant bears the burden of proving his minor role by a preponderance of the evidence. See Moran, 778 F.3d at 980.

To determine whether a minor role adjustment applies, the court should consider (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 *654 in his relevant conduct.” Id. “[A] defendant’s status as a drug courier does not alter the principle that the district court must assess the defendant’s role in light of the relevant conduct attributed to [him]” and is not itself dispositive of whether a defendant is entitled to receive a minor role adjustment. United States v.

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Bluebook (online)
686 F. App'x 651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sebastian-gil-ramirez-ca11-2017.