[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11310 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 16, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00343-BBM-GGB-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTIAN ZARATE MENDEZ,
a.k.a. Christian Zarate-Mendez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 16, 2010)
Before BLACK, WILSON and FAY, Circuit Judges.
PER CURIAM:
Christian Zarate Mendez appeals his 63-month sentence for conspiracy and
attempt to possess with intent to distribute 5 kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and 846. He claims, first, that
the district court plainly erred in attributing 100.5 kilograms of cocaine to him. He
further argues that the district court should have applied a four-level minimal-role
reduction to his offense level, rather than a two-level minor-role reduction. For
the reasons set forth below, we affirm.
I.
In 2009, a confidential source (“CS”) working under the direction of the
Drug Enforcement Administration (“DEA”) received more than 100 kilograms of
cocaine from a supplier in Texas. The Texas supplier instructed the CS to find a
truck driver to transport the cocaine from Atlanta. Once in Atlanta, the driver
would be given a contact number for delivery of the cocaine. After undercover
agents transported the cocaine to Atlanta in a controlled delivery, the CS contacted
them with a telephone number for Noel Tejeda-Ortega.
An undercover agent, posing as a tractor-trailer driver, called
Tejeda-Ortega, informed him that he was ready to unload the truck, and asked him
to come to the Sam’s Club at Interstate 85 and Clairmont Road. Tejeda-Ortega
asked the agent to bring the load to a location in south Atlanta, but the agent
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refused. Tejeda-Ortega told him to call back later. When they spoke again,
Tejeda-Ortega eventually agreed to meet at the Sam’s Club, and he advised that he
would be driving a white and grey Ford Ranger.
A few minutes later, a grey Ford Ranger and a Chevy Tahoe entered the
Sam’s Club parking lot. Tejeda-Ortega drove the Tahoe through the parking lot to
a gas station across the street. Mendez exited the Ranger, called Tejeda-Ortega,
and handed the phone to the agent. Tejeda-Ortega again tried to change the
location of the delivery, but eventually agreed that Mendez would take the cocaine
at the Sam’s Club. The agent handed Mendez a bag containing approximately 24
kilograms of cocaine and 25 kilograms of sham cocaine, and together they placed
it on the back of the Ranger. As the agent entered the sleeper cab to retrieve
another bag containing approximately 54 kilograms of cocaine, other agents
approached them and placed Mendez under arrest. Tejeda-Ortega was arrested at
the gas station. The DEA determined that the bags contained a total of 100.5
kilograms of real and sham cocaine.
A supplier in Mexico had informed Tejeda-Ortega that he would be sending
a package to him, which Tejeda-Ortega believed would contain drugs.
Tejeda-Ortega did not know who the intended recipient would be. He would have
received further instruction once he obtained the package. Mendez told officers
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that Tejeda-Ortega had asked him that day to help retrieve the package.
Tejeda-Ortega did not tell him what was in the package, who the source was, or
who the recipient would be, but Mendez suspected that the package would contain
drugs.
Mendez pled guilty to both counts of the indictment and successfully argued
for safety-valve relief. He further argued that his offense level should be reduced
by four levels, as he had a minimal role in the offense. The court found that a
mitigating-role reduction was appropriate, as Mendez was merely a driver, but it
concluded that his role was not very different from Tejeda-Ortega’s role.
Accordingly, it applied a two-level minor-role reduction.
Mendez did not object to the drug-quantity calculation. He argues on
appeal that he did not know how much cocaine would be provided or the number
of bags in which it would be contained, and he took possession of only one bag,
which contained both real and sham cocaine. He contends that he could not
reasonably foresee that the conspiracy involved 100.5 kilograms of cocaine, and,
thus, he should be held accountable for only the 24 kilograms of real cocaine of
which he took possession.
II.
A district court must begin the sentencing process by correctly calculating
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the applicable guideline range. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct.
586, 596, 169 L.Ed.2d 445 (2007). Likewise, we begin our review of a sentence
for reasonableness by ensuring that the district court did not commit any
significant procedural error, such as improperly calculating the guideline range.
Id. at 51, 128 S.Ct. at 597. Where, as here, the defendant fails to object in the
district court to a purported procedural error, we review for plain error. See
United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Thus, Mendez must
show (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776,
123 L.Ed.2d 508 (1993).
At the sentencing hearing, the government must prove by a preponderance
of the evidence any fact to be considered by the district court, United States v.
Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005), including the applicability of any
guideline enhancements, United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir.
2006). “The findings of fact of the sentencing court may be based on evidence
heard during trial, facts admitted by a defendant’s plea of guilty, undisputed
statements in the presentence report, or evidence presented at the sentencing
hearing.” United States v. Saunders, 318 F.3d 1257, 1271 n.22 (11th Cir. 2003)
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(quotation and alteration omitted).
The Sentencing Guidelines specify that a defendant is to be held
accountable for (1) all of the acts and omissions he committed, aided and abetted,
or otherwise willfully caused; and (2) all reasonably foreseeable acts and
omissions taken by others in furtherance of the jointly undertaken criminal
activity. U.S.S.G. § 1B1.3(a)(1)(A), (a)(1)(B). “[T]he defendant is accountable
for all quantities of contraband with which he was directly involved and, in the
case of a jointly undertaken criminal activity, all reasonably foreseeable quantities
of contraband that were within the scope of the criminal activity that he jointly
undertook.” U.S.S.G. § 1B1.3, comment. (n.2). “The requirement of reasonable
foreseeability applies only in respect to the conduct . . . of others. . . . It does not
apply to conduct that the defendant personally undertakes . . . .” Id. Additionally,
the district court does not plainly err when it bases a defendant’s sentence for a
possession charge on the total quantity of both real and sham cocaine involved.
United States v. Martinez, 83 F.3d 371, 377 (11th Cir. 1996).
Because Mendez was held accountable only for the amount of cocaine of
which he personally attempted to take possession, his arguments as to reasonable
forseeability are inapposite. See U.S.S.G. § 1B1.3(a)(1)(A), (a)(1)(B), &
comment. (n.2). In light of his guilty plea and the undisputed facts in the
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presentencing investigation report, see Saunders, 318 F.3d at 1271 n.22, the court
properly concluded that Mendez attempted to possess the entire shipment,
including both bags, although his arrest prevented him from taking possession of
the second bag. Accordingly, he was properly held accountable for the full
quantity under § 1B1.3(a)(1)(A). Finally, the district court did not plainly err in
including both the sham cocaine and the real cocaine in the drug-quantity
calculation. See Martinez, 83 F.3d at 377. Therefore, the district court’s
drug-quantity determination was not plainly erroneous.
III.
A district court’s determination of the defendant’s role in the offense is
reviewed for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999). “[A] similar fact pattern may on occasion give rise to two reasonable and
different constructions. This is inherent in the fact-intensive inquiry specifically
contemplated by the Guidelines. . . . [A] trial court’s choice between ‘two
permissible views of the evidence’ is the very essence of the clear error standard
of review.” Id. at 945. Thus, “[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, . . .
it will be rare for [us] to conclude that the sentencing court’s determination is
clearly erroneous.” Id. The party seeking the mitigating-role adjustment bears the
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burden of establishing its applicability by a preponderance of the evidence. Id. at
939.
“If the defendant was a minimal participant in any criminal activity,” his
offense level is reduced by four levels. U.S.S.G. § 3B1.2(a). The
minimal-participant designation is reserved for those “who play[] a minimal role
in concerted activity,” and “who are plainly among the least culpable of those
involved in the conduct of a group.” Id. § 3B1.2, comment. (n.4). The
defendant’s lack of knowledge or understanding of the scope and structure of the
enterprise and of the others’ activities is indicative of a minimal role. Id. The
minimal-participant adjustment is to be used infrequently. Id. On the other hand,
if the defendant was a “minor participant,” his offense level is reduced by only two
levels. Id. § 3B1.2(b). A minor participant is one “who is less culpable than most
other participants, but whose role could not be described as minimal.” Id.
§ 3B1.2, comment. (n.5).
In determining whether a mitigating-role adjustment applies, the district
court should consider two principles: “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. As to the first prong of this analysis, the court must
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assess the defendant’s role in relation to all of the relevant conduct that was
attributed to him under § 1B1.3, as the broad scope of that section may cause some
defendants to be held accountable for conduct that is much broader than their
specific acts. Id. at 940-41. “Only if the defendant can establish that [he] played a
relatively minor role in the conduct for which [he] has already been held
accountable—not a minor role in any larger criminal conspiracy—should the
district court grant a downward adjustment for minor role in the offense.” Id. at
944. The amount of drugs is relevant and may be determinative in the context of
minimal participants, such as where an individual offloaded part of a single
shipment in the context of a very large drug smuggling operation, or where an
individual was recruited as a courier for a single smuggling transaction involving
only a small amount of drugs. Id. at 943.
As to the second prong of the analysis, the court should compare the
defendant to the other participants only to the extent that the others (1) “are
identifiable or discernable from the evidence,” and (2) “were involved in the
relevant conduct attributed to the defendant.” De Varon, 175 F.3d at 944.
Relative culpability might not be dispositive, since it is possible that none of the
participants had minor or minimal roles. Id. Thus, the defendant must show that
he “was less culpable than most other participants in [his] relevant conduct” in
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order to receive a minor-role reduction. Id.
The only relevant conduct for which Mendez was held accountable was the
delivery of the 100.5-kilogram shipment. A supplier in Mexico and an
importer/supplier in Texas provided the 100.5 kilograms of cocaine to the CS for
delivery to Tejeda-Ortega, Tejeda-Ortega recruited Mendez at the last minute to
pick up the cocaine for him, Mendez drove separately to the pick-up site and took
the cocaine from the DEA agent while Tejeda-Ortega waited across the street, and
Tejeda-Ortega was to make the final delivery after the importer gave him contact
information for the ultimate buyer. Mendez did not know who had provided or
purchased the cocaine. He was not told the contents of the package he was to pick
up, but he suspected it contained drugs. As Mendez’s involvement with the
delivery was relatively minor and he was less culpable than most other
participants, a mitigating-role reduction was appropriate for consideration. See De
Varon, 175 F.3d at 940-44.
Given Mendez’s limited involvement and his lack of knowledge about the
enterprise or the other participants, the district court arguably could have found
that his participation satisfied the minimal-role definition. Nevertheless, the
court’s finding, that Mendez’s involvement and level of knowledge were not so
much less than Tejeda-Ortega’s as to make him plainly among the least culpable
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for the offense, is supported by the record. Thus, the court’s choice between the
two permissible views of the evidence and its resulting decision to award a
minor-role reduction rather than a minimal-role reduction were not clearly
erroneous. See De Varon, 175 F.3d at 945.
For the foregoing reasons, we affirm Mendez’s sentence.
AFFIRMED.
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