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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14719
Non-Argument Calendar
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D.C. Docket No. 9:12-cr-80211-DTKH-6
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROLAND JEAN,
a.k.a. Lobo,
a.k.a. Bolo,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 18, 2016)
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Before HULL, MARCUS and JILL PRYOR, Circuit Judges.
PER CURIAM:
Roland Jean appeals his 70-month sentence, imposed at the bottom of the
Sentencing Guidelines range after he pled guilty to one count of conspiracy with
intent to distribute five kilograms of cocaine, in violation of 21 U.S.C. § 846. On
appeal, Jean argues that his sentence is substantively unreasonable and that the
district court should have applied a downward variance from the guidelines range
to reflect the relatively minor role he played in a large-scale international drug
trafficking operation. 1 Upon review of the record and the parties’ briefs, we
affirm.
We review sentencing decisions for an abuse of discretion. United States v.
Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010). This standard of review
reflects the due deference we give to district courts because they have an
“institutional advantage in making sentencing determinations.” Id. at 735 (internal
quotation marks omitted).
1
Notably, Jean does not contend that the district should have applied a minor role
reduction to his offense level when calculating his guidelines range. Jean conceded at his
sentencing hearing that the district court properly calculated his guidelines range. Instead, he
argued before the district court, and continues to argue on appeal that his relatively minor role in
the trafficking conspiracy supported the application of a downward variance from the guidelines
range. According to Jean, the district court imposed a substantively unreasonable sentence when
it declined to vary from the guidelines range. We therefore confine our inquiry here to the
substantive reasonableness of Jean’s sentence.
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Pursuant to 18 U.S.C. § 3553(a), the district court must impose a sentence
sufficient but not greater than necessary to comply with the purposes set forth in
§ 3553(a)(2), including imposing a sentence that reflects the seriousness of the
offense, promotes respect for the law, deters criminal conduct, and protects the
public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2).
The court must also consider the nature and circumstances of the offense, the
history and characteristics of the defendant, the kinds of sentences available, the
applicable guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the need to
provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
Reviewing the reasonableness of a sentence is a two-step process. “We look
first at whether the district court committed any significant procedural error and
then at whether the sentence is substantively reasonable under the totality of the
circumstances.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
The party challenging the sentence bears the burden of showing it is unreasonable
in light of the record and the relevant factors. Id. As Jean does not challenge the
procedural reasonableness of his sentence, we proceed directly to the issue of its
substantive reasonableness.
A district court abuses its discretion and imposes a substantively
unreasonable sentence if it “(1) fails to afford consideration to relevant [§ 3553(a)]
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factors that were due significant weight, (2) gives significant weight to an improper
or irrelevant factor, or (3) commits a clear error of judgment in considering the
proper factors.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir.
2015) (internal quotation marks omitted). “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. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (internal quotation
marks omitted). “[I]t is only the rare sentence that will be substantively
unreasonable.” Rosales-Bruno, 789 F.3d at 1256 (internal quotation marks
omitted). Where, as here, a sentence is within the guidelines range, we ordinarily
expect it to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008). That a sentence is below the statutory maximum is also a factor favoring its
reasonableness. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008).
Jean argues that his sentence is substantively unreasonable because it is
unnecessarily harsh in light of the minor role he played in a trafficking operation
that imported cocaine from Haiti, through the Bahamas, and into the United States.
Although the exact role Jean played in the conspiracy is somewhat unclear, it is
beyond dispute that he acted in the role of a middleman facilitating drug shipments
into the United States from his home in the Bahamas. At a minimum, he stored
approximately 19 kilograms of cocaine in his home so that it could be picked up
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and transported to the United States. Once the cocaine arrived in the United States,
however, it was intercepted by law enforcement. Jean investigated what happened
to the drugs and made attempts to retrieve them that ultimately proved
unsuccessful. He then tried to replace the cocaine that had gone missing by storing
an additional five kilograms of cocaine in his home that was then transported to the
United States. Based on these circumstances, Jean’s presentence investigation
report attributed 24 kilograms of cocaine to his conduct and calculated a guidelines
range of 70 to 87 months’ imprisonment. The district court ultimately imposed a
sentence of 70 months’ imprisonment, which was at the bottom of that range.
The district court did not abuse its discretion by imposing a substantively
unreasonable sentence. At the outset, Jean’s sentence is within the guidelines
range, which is a factor that counsels in favor of its reasonableness, as is the fact
that his sentence is below the statutory maximum. See Hunt, 526 F.3d at 746; see
also Gonzalez, 550 F.3d at 1324. Even were that not the case, we doubt that Jean’s
role in the trafficking conspiracy warranted applying a variance from the
guidelines range. Although Jean may have played a relatively small role in a larger
conspiracy, at sentencing the district court only appears to have considered conduct
and drug quantities directly attributable to Jean. And in the context of evaluating
the propriety of applying minor role adjustments to guidelines range calculations,
we have noted that “where the relevant conduct attributed to a defendant is
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identical to her actual conduct, she cannot prove that she is entitled to” a more
lenient sentence “simply by pointing to some broader criminal scheme in which
she was a minor participant but for which she was not held accountable.” United
States v. Rodriguez De Varon, 175 F.3d 930, 941 (11th Cir. 1999).
We see no reason why this reasoning would fail to apply to a district court’s
refusal to apply a variance from the guidelines range.2 Jean’s participation in a
larger trafficking operation does not automatically entitle him to a sentence below
the guidelines range, particularly where, as here, the district court sentenced him
based on conduct directly attributable to him. He materially and personally
participated in facilitating the importation of 24 kilograms of cocaine into the
United States by storing it in his home. And when some of those drugs went
2
Jean points to recent amendments to the commentary of the Sentencing Guidelines
concerning minor role designations to support his argument that the district court should have
varied from the guidelines range when sentencing him. Although these amendments came into
effect after his sentencing, we nonetheless consider them on appeal unless they would subject
Jean to a greater punishment. United States v. Howard, 923 F.2d 1500, 1504 (11th Cir. 1991).
The amendments Jean directs us to consider make minor modifications to the
commentary in U.S.S.G. § 3B1.2. See United States Sentencing Commission, Guidelines
Manual, Supp. to App. C (Nov. 2015). They also include new language that instructs courts
considering whether to apply a minor role adjustment to weigh a list of nonexhaustive factors
that include: “(i) the degree to which the defendant understood the scope and structure of the
criminal activity; (ii) the degree to which the defendant participated in planning or organizing the
criminal activity; (iii) the degree to which the defendant exercised decision-making authority or
influenced the exercise of decision-making authority; (iv) the nature and extent of the
defendant’s participation in the commission of the criminal activity, including the acts the
defendant performed and the responsibility and discretion the defendant had in performing those
acts; [and] (v) the degree to which the defendant stood to benefit from the criminal activity.” Id.
Problematically, however, Jean never explains how or why this commentary, which only appears
to clarify existing law, renders the district court’s sentencing determination unreasonable, and we
see no reason why it would alter our analysis or conclusion here.
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missing, he played an active part in trying to recover them. In light of this conduct,
his sentence is not substantively unreasonable. We affirm.
AFFIRMED.
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