[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13095 ELEVENTH CIRCUIT
JANUARY 20, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 09-00045-CR-T-26-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FELIX BONILLA-ORTIZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 20, 2010)
Before BLACK, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Jose Felix Bonilla-Ortiz appeals his 135-month sentence following his guilty
plea to conspiracy to possess with intent to distribute, and aiding and abetting in
the possession with intent to distribute, 5 kilograms or more of cocaine while
aboard a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. § § 70503(a), 70506(a) and (b), 21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C.
§ 2. On appeal, Bonilla-Ortiz argues: (1) the district court erred by denying him a
minor-role reduction under U.S.S.G. § 3B1.2(b), and (2) his sentence was
substantively unreasonable. After review, we affirm.
I.
On appeal, Bonilla-Ortiz argues the district court clearly erred by failing to
grant a minor-role reduction pursuant to U.S.S.G. § 3B1.2(b). Specifically,
Bonilla-Ortiz contends he warrants a minor-role reduction because: (1) drug
quantity alone should not be determinative of his role, (2) his role was limited to
that of a crew member on the vessel, (3) he had no role in organizing the transport
or distribution of the drugs, and (4) there was no evidence as to the amount of
money he was to be paid and he only had $800 in his possession when arrested.
“[A] district court’s determination of a defendant’s role in the offense is a
finding of fact to be reviewed only for clear error.” United States v. De Varon,
175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant, as the proponent of
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the downward adjustment, bears the burden of proving the mitigating role in the
offense by a preponderance of the evidence. Id. at 939. A district court enjoys
“considerable discretion in making this fact-intensive determination.” Id. at 946.
The Sentencing Guidelines permit a court to decrease a defendant’s offense
level by two levels if it finds the defendant was a “minor participant” in the
criminal activity. U.S.S.G § 3B1.2(b). A minor participant is a defendant “who is
less culpable than most other participants, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2, comment. (n.5). In determining whether a
minor-role reduction is warranted, a district court “should be informed by two
principles discerned from the Guidelines.” De Varon, 175 F.3d at 940. First, “the
district court must measure the defendant’s role against the relevant conduct for
which [he] has been held accountable at sentencing.” Id. at 945. If the defendant’s
relevant conduct is the same as his actual conduct, he “cannot prove that [he] is
entitled to a minor role adjustment simply by pointing to some broader criminal
scheme in which [he] was a minor participant but for which [he] was not held
accountable.” Id. at 941. We have held “that in many cases this method of
analysis will be dispositive.” Id. at 945.
Furthermore, while a drug courier who is held accountable only for the
quantity of drugs he personally transported is not precluded from consideration for
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a minor-role reduction, see U.S.S.G. § 3B1.2, comment. (n.3(A)), the district court
still “may legitimately conclude that the courier played an important or essential
role in the importation of those drugs,” De Varon, 175 F.3d at 942-43. Also, the
drug quantity for which the courier is responsible is a “material consideration,”
and, in “extreme cases,” the drug quantity alone may be dispositive. Id. at 943.
Under the second prong, “the district court may also measure the
defendant’s role against the other participants, to the extent that they are
discernable, in that relevant conduct,” but “the conduct of participants in any larger
criminal conspiracy is irrelevant.” Id. at 944-45. A defendant, however, “is not
automatically entitled to a minor role adjustment merely because [he] was
somewhat less culpable than the other discernable participants. Rather, the district
court must determine that the defendant was less culpable than most other
participants in [the] relevant conduct.” Id. at 944 (emphasis in original).
Bonilla-Ortiz’s claim fails under the first prong because the relevant conduct
for which he was held accountable, conspiring to possess 6,801 kilograms of
cocaine, was identical to his actual conduct in the offense. Additionally, most of
the factors raised by Bonilla-Ortiz in support of a minor-role reduction contemplate
his role in the broader conspiracy, not the relevant conduct upon which he and the
other crewmen were convicted. While Bonilla-Ortiz may have been a minor
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participant in the overall drug smuggling operation, he cannot use that status to
justify a minor-role reduction in his sentence for the smaller conspiracy in which
he personally participated. See De Varon, 15 F.3d at 941. Bonilla-Ortiz’s claim
also fails under the second prong because the record shows Bonilla-Ortiz was not
less culpable than the other crew members who transported the drugs. Rather, the
record shows that, other than the captain, the co-conspirators had roles similar to
Bonilla-Ortiz, namely as crew members on the transport vessel. Accordingly, the
district court did not clearly err in denying Bonilla-Oritz a minor-role reduction.
II.
Bonilla-Ortiz also contends his 135-month sentence is substantively
unreasonable in light of United States v. Booker, 125 S. Ct. 738 (2005), and the
sentencing factors in 18 U.S.C. § 3553(a).
We review the sentence imposed by the district court for reasonableness.
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). When reviewing for
reasonableness, courts of appeal are to apply the deferential abuse-of-discretion
standard. Gall v. United States, 128 S. Ct. 586, 594 (2007).
When reviewing a sentence, we must first determine that the “district court
committed no significant procedural error.” Id. at 597. If the district court’s
decision is procedurally reasonable, our analysis then turns to the substantive
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reasonableness of the sentence. Id. “[T]he party who challenges the sentence
bears the burden of establishing that the sentence is unreasonable in the light of
both [the] record and the factors in section 3553(a).” Talley, 431 F.3d at 788.
“Review for reasonableness is deferential,” and the relevant inquiry is “whether the
sentence imposed by the district court fails to achieve the purposes of sentencing as
stated in section 3553(a).” Id.
Although the weight accorded to the § 3553(a) factors is left to the district
court’s discretion, “[a] district court’s unjustified reliance on any one Section
3553(a) factor may be a symptom of an unreasonable sentence.” United States v.
Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). Another relevant factor in assessing
reasonableness is the relationship between the defendant’s sentence and the
applicable statutory maximum. See United States v. Valnor, 451 F.3d 744, 751-52
(11th Cir. 2006). Ordinarily, we expect a sentence within the guideline range to be
reasonable. Talley, 431 F.3d at 788.
We conclude Bonilla-Ortiz’s 135-month sentence is both procedurally and
substantively reasonable. Apart from the district court’s refusal to give a minor-
role reduction, Bonilla-Ortiz does not challenge the procedures used by the district
court to determine his sentence. As discussed above, the district court did not err
in denying the minor-role reduction, and a review of the record reveals the district
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court did not commit any procedural errors with respect to Bonilla-Ortiz’s
sentence. With regard to substantive reasonableness, Bonilla-Ortiz’s sentence is at
the low end of the advisory guideline range, well below the statutory maximum of
life imprisonment, and supported by the § 3553(a) factors. See Talley, 431 F.3d at
788; Valnor, 451 F.3d at 751-52. Accordingly, because Bonilla-Ortiz’s sentence
did not fall outside of the range of reasonable sentences from which the district
court could permissibly choose, we affirm.
AFFIRMED.
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