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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11413
Non-Argument Calendar
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D.C. Docket No. 0:11-cr-60269-DTKH-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELIO A. RIQUENES,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 23, 2013)
Before CARNES, Chief Judge, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
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Elio Alfredo Riquenes appeals his 36-month sentence for one count of
conspiracy to possess with intent to distribute oxycodone, in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(C). Riquenes procured 2,106 suspected
oxycodone pills, 1 and two other co-conspirators arranged to sell them to a Drug
Enforcement Administration (DEA) confidential informant. On appeal, Riquenes
argues that: (1) his unsophisticated and limited role in the conspiracy merited a
two-level minor role reduction to his offense level; and (2) his sentence, even
though representing a 10-month downward variance from the advisory guideline
range of 46 to 57 months’ imprisonment, is substantively unreasonable. After a
thorough review of the record, we affirm.
I. Minor Role Reduction
We review a district court’s factual determination of a defendant’s role in
the offense for clear error. United States v. Rodriguez De Varon, 175 F.3d 930,
938 (11th Cir. 1999) (en banc); see 18 U.S.C. § 3742(e) (“The court of
appeals . . . shall accept the findings of fact of the district court unless they are
clearly erroneous . . . .”). The proponent of the downward adjustment “always
bears the burden of proving a mitigating role in the offense by a preponderance of
the evidence.” De Varon, 175 F.3d at 939.
A defendant who is a “minor participant” in a criminal offense receives a
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Although Riquenes and his co-conspirators believed the pills to be oxycodone, the pills
later tested negative for controlled substances.
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two-level reduction to his base offense level. U.S.S.G. § 3B1.2(b). A minor
participant is a participant who is “less culpable than most other participants, but
whose role could not be described as minimal.” U.S.S.G. § 3B1.2, cmt. n.5; see id.
§ 3B1.2, cmt. n.4 (explaining that a “minimal participant” is “plainly among the
least culpable of those involved in the conduct of a group”).
Although the district court’s factual determination regarding a defendant’s
role in the offense is entitled to deference, it “should be informed by two principles
discerned from the Guidelines: first, the defendant’s role in the relevant conduct
for which [he] has been held accountable at sentencing, and, second, [his] role as
compared to that of other participants in [his] relevant conduct.” De Varon, 175
F.3d at 940. With regard to the first principle, “the district court must measure the
defendant’s role against [his] relevant conduct, that is, the conduct for which [he]
has been held accountable” in calculating his base offense level. United States v.
Keen, 676 F.3d 981, 997 (11th Cir.) (internal quotation marks omitted), cert.
denied, 133 S. Ct. 573 (2012). As for the second principle, the district court may
make an assessment of relative culpability among the various participants in a
criminal offense that were involved in the relevant conduct attributed to the
defendant. See Keen, 676 F.3d at 997. Even if a defendant played a lesser role in
the relevant criminal conduct, “it is possible that none are minor or minimal
participants,” and so the district court “must determine that the defendant was less
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culpable than most other participants in [his] relevant conduct.” De Varon, 175
F.3d at 944 (emphasis in original) (internal quotation marks omitted).
Here, Riquenes did not carry his burden to show, by a preponderance of the
evidence, that he was entitled to a minor role reduction to his offense level, and the
district court’s determination to the contrary was not clearly erroneous. See id. at
938. In keeping with the first principle of De Varon, the district court looked to
the extent that Riquenes was involved in the relevant conduct of his offense, and
determined that the relevant conduct encompassed only the drugs with which
Riquenes was personally involved. See id. at 940–42. Then, looking to the
relative culpability of all of the participants and concluding that they were
responsible for the same relevant conduct, the district court determined that it was
ultimately Riquenes who found and negotiated with the oxycodone supplier—
actions which constituted a significant degree of responsibility. Accordingly, the
district court concluded that Riquenes was not less culpable than the other
participants in the conspiracy. The district court had “considerable discretion” in
making this factual determination, and we conclude that its decision was not
clearly erroneous. See id. at 946.
II. Substantive Reasonableness
We review the substantive reasonableness of a sentence using a deferential
abuse of discretion standard. United States v. Irey, 612 F.3d 1160, 1165 (11th Cir.
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2010) (en banc). We will vacate a sentence “if, but 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.” Id. at
1190 (internal quotation marks omitted). The party challenging the sentence bears
the burden of showing it to be “unreasonable in light of the record and the
§ 3553(a) factors.” United States v. Langston, 590 F.3d 1226, 1236 (11th Cir.
2009).
The district court must issue a punishment “sufficient, but not greater than
necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a).
These purposes include the need for a sentence to reflect the seriousness of the
offense, to promote respect for the law, to provide just punishment, to deter
criminal conduct, and to protect the public from future criminal conduct. Id.
§ 3553(a)(2). Additional considerations include the nature and circumstances of
the offense, the history and characteristics of the defendant, the applicable
guideline range, and the need to avoid unwarranted sentencing disparities. Id.
§§ 3553(a)(1), (4)(A), and (6). The “weight to be accorded any given § 3553(a)
factor is a matter committed to the sound discretion of the district court.” United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (per curiam) (internal
quotation marks omitted). We will not “set aside a sentence merely because we
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would have decided that another one is more appropriate. . . . A district court’s
sentence need not be the most appropriate one, it need only be a reasonable one.”
Irey, 612 F.3d at 1191 (citations omitted). “[W]e ordinarily expect a sentence
within the Guidelines range to be reasonable.” United States v. Hunt, 526 F.3d
739, 746 (11th Cir. 2008) (alterations and internal quotation marks omitted). The
fact that a given sentence is lower than the statutory maximum may also be an
indicator of reasonableness. See United States v. Valnor, 451 F.3d 744, 751–52
(11th Cir. 2006).
Riquenes has not carried his burden to show that his sentence, which
represented a 10-month downward variance from the guideline range, was
unreasonable, or that the district court committed a clear error of judgment in
weighing the § 3553(a) factors. See Irey, 612 F.3d at 1190. The district court
recognized its obligation to consider the § 3553(a) factors, and explicitly
considered Riquenes’s familial and economic situation, as well as his
unsophisticated participation in an unsophisticated oxycodone scheme; on the other
hand, the district court recognized the criminal severity of oxycodone distribution.
The district court also noted that Riquenes had no criminal history and was
unlikely to appear before it again on a similar offense, but that general deterrence
principles favored a sentence exemplifying the significant consequences for drug
offenses.
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As for any sentencing disparity between Riquenes and his co-conspirators,
Riquenes has not shown that the district court’s refusal to impose a greater
downward variance based on this factor is unreasonable. Similar to its analysis of
the minor-role reduction issue, the district court stated that Riquenes’s role was
significant, and the court could reasonably have credited the government’s
assertion that the co-conspirator’s role—which was one of mere introduction
between the oxycodone dealer and Riquenes—indeed merited a lighter sentence.
The weighing of these § 3553(a) factors was committed to the district court’s
“sound discretion,” and Riquenes has not shown that these conclusions were
unreasonable. See Williams, 526 F.3d at 1322; see also Langston, 490 F.3d at
1237. Additionally, Riquenes’s sentence is below the guideline range and
significantly below the statutory maximum term of 20 years’ imprisonment, both
of which are additional indicia of reasonableness. See Hunt, 526 F.3d at 746;
Valnor, 451 F.3d at 751–52; see also 21 U.S.C. § 841(b)(1)(C).
AFFIRMED.
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