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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10222
________________________
D.C. Docket No. 1:15-cr-20290-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL MONZO,
a.k.a. El Miki,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 7, 2017)
Before MARCUS, JILL PRYOR and SILER, * Circuit Judges.
MARCUS, Circuit Judge:
Miguel Monzo appeals his total 120-month sentence, imposed at the low end
of his advisory guideline range and at the statutory mandatory minimum, after
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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pleading guilty to one count of conspiracy to possess with intent to distribute 50
grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(viii), and 846.
On appeal, Monzo argues that: (1) the district court erred in denying his
request for a minor-role reduction; (2) the district court erred in assessing three
criminal history points for a 2001 Nevada felony drug-possession conviction; and
(3) the district court erred in assessing two criminal history points for a 2007 New
Mexico misdemeanor concealing-identity conviction. Concerning the last two
issues, Monzo further argues that without the district court’s error in assigning
these five criminal history points to him, he would have been eligible for relief
under the Safety Valve, U.S.S.G. § 5C1.2, which allows a sentencing court to
sentence a defendant without regard to any statutory minimum if the defendant
does not have more than one criminal history point. The government responds,
among other things, that because Monzo does not challenge one of the criminal
history points he received, and because Monzo cannot succeed on both of the
criminal history arguments he raises here, any error in one or the other would not
have made him eligible for Safety Valve relief. After careful review, we affirm.
I.
First, we are unpersuaded by Monzo’s claim that the district court clearly
erred in denying his request for a minor-role reduction. We review a district
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court’s denial of a role reduction for clear error. United States v. Bernal-Benitez,
594 F.3d 1303, 1320 (11th Cir. 2010). Clear error review is deferential, and “we
will not disturb a district court’s findings unless we are left with a definite and firm
conviction that a mistake has been committed.” United States v. Ghertler, 605
F.3d 1256, 1267 (11th Cir. 2010) (quotations omitted). The district court’s “choice
between two permissible views of the evidence” concerning the defendant’s role in
the offense will rarely constitute clear error “[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.” United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999)
(en banc) (quotation and emphasis omitted). The defendant bears the burden of
establishing his minor role by a preponderance of the evidence. Bernal-Benitez,
594 F.3d at 1320.
The Sentencing Guidelines provide for a two-level decrease to a base
offense level if the defendant was a minor participant in the criminal activity.
U.S.S.G § 3B1.2(b). A minor participant is one “who is less culpable than most
other participants in the criminal activity, but whose role could not be described as
minimal.” Id., cmt. n.5. Our leading case concerning the minor-role reduction --
De Varon -- has long instructed district courts considering a minor-role reduction
to assess “first, the defendant’s role in the relevant conduct for which [he] has been
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held accountable at sentencing, and, second, [his] role as compared to that of other
participants in [his] relevant conduct.” 175 F.3d at 940.
In De Varon, the defendant was a drug courier -- she had ingested and
smuggled 70 heroin-filled pellets into the United States from Colombia. Id. at
934. We recognized that “when a drug courier’s relevant conduct is limited to her
own act of importation, a district court may legitimately conclude that the courier
played an important or essential role in the importation of those drugs.” Id. at 942-
43. However, we declined to “create a presumption that drug couriers are never
minor or minimal participants, any more than that they are always minor or
minimal”; rather, “the district court must assess all of the facts probative of the
defendant’s role in her relevant conduct in evaluating the defendant’s role in the
offense.” Id. at 943. As examples of relevant facts for the court to consider, we
listed the “amount of drugs, fair market value of drugs, amount of money to be
paid to the courier, equity interest in the drugs, role in planning the criminal
scheme, and role in the distribution.” Id. at 945. The en banc Court in De Varon
stressed that this is “not an exhaustive list,” nor is “any one factor . . . more
important than another,” especially since the determination is highly fact-intensive
and “falls within the sound discretion of the trial court.” Id. We ultimately
concluded that it was well within the sentencing court’s discretion to deny De
Varon a minor-role adjustment, after it determined that she was central to the
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importation scheme; that she had carried a substantial amount of high-purity heroin
on her person; that it was unclear from the record that she was less culpable than
the other described participant in the scheme; and that she had furnished $1,000 of
her own money to finance the smuggling enterprise. Id. at 945-46.
Consistent with De Varon, commentary to the Sentencing Guidelines has
laid out factors a court should consider when faced with a minor-role claim:
(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;
(v) the degree to which the defendant stood to benefit from
the criminal activity.
For example, a defendant who does not have a proprietary
interest in the criminal activity and who is simply being paid to
perform certain tasks should be considered for an adjustment under
this guideline.
The fact that a defendant performs an essential or indispensable
role in the criminal activity is not determinative. Such a defendant
may receive an adjustment under this guideline if he or she is
substantially less culpable than the average participant in the criminal
activity.
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U.S.S.G. § 3B1.2 cmt. n.3(C). The Guidelines’ commentary explains further that
“[a] defendant who is accountable under 1.3 (Relevant Conduct) only for the
conduct in which the defendant personally was involved and who performs a
limited function in the criminal activity may receive an adjustment under this
guideline.” U.S.S.G. § 3B1.2 cmt. n.3(A).
Here, Monzo argues that he was entitled to a minor-role adjustment because
he merely acted as a low-level courier for methamphetamine. But as the en banc
Court said in De Varon, a defendant’s status as a courier is not determinative; the
district court must still assess the totality of the circumstances. 175 F.3d at 945.
According to the factual proffer, which was submitted in support of Monzo’s guilty
plea, Monzo admitted to packaging methamphetamine and mailing it from Las
Vegas, Nevada to recipients in Miami, Florida, at the direction of the source of
supply for the drugs. The recipients in Miami would further distribute the
methamphetamine. Monzo also admitted that he provided bank account
information to the recipients in Miami so that they could deposit the proceeds of
the methamphetamine sales in those accounts.
At the sentencing hearing, the district court found that Monzo had packaged
and mailed “very pure drugs” to drug dealers in Miami, and by doing so, Monzo
had facilitated the flow of the drugs in the country. The court also found that
Monzo had control over which banks the proceeds from the sale of the drugs went
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to by notifying the buyers where to deposit the proceeds. The district court added
that Monzo was held responsible only for his own conduct in the conspiracy -- that
is, only “for the sales he did on the street.” The district court emphasized that it
had looked at Monzo’s situation “individually,” and found that Monzo was a very
“important part of the crime.” Consistent with De Varon, the district court
considered, first, Monzo’s role in the conduct for which he was being sentenced,
and, second, Monzo’s role as compared to others. The district court also
considered several relevant factors, including that Monzo participated in the
distribution of high-purity methamphetamine, that he directed payment for the
methamphetamine, that he was responsible only for his direct role in the
conspiracy, and that he was important to the scheme. On this record, we cannot
say the district court clearly erred in finding that Monzo did not play a minor role
in the offense. Accordingly, we affirm the district court’s denial of the minor-role
reduction. See De Varon, 175 F.3d at 942-43.1
1
We do, however, raise a concern about some of the district court’s comments about the
application of the minor-role reduction. In relevant part, the district court said:
[T]he [drug] courier[] [in general] . . . is an integral and important phase of
the drug dealing . . . .
So this Court has never -- this judge has never accepted the proposition
that this is a minor role.
We look at each situation individually and treat people as human beings
individually, but the Court finds that this is a very important part of the crime that
was committed.
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And the act that this particular defendant has pled guilty to involves a
receipt of very pure drugs . . . . That’s one finding.
The second finding is by packaging or repackaging, that he packaged and
mailed on to drug dealers in Miami, he then implemented the flow of this filth,
this scourge in this district, in this country.
He implemented that. But for that doing, it wouldn’t have gotten here in
this crime. It might have been some other way or some other time or some other
place being bought or not, but that’s very important. . . .
[T]he further aspect of having control over where the payments of the
drugs was to the banks by giving the notification to the buyers where to send the
money and all that, that objection as to the minor role is overruled and the request
for some sort of minor role adjustment is denied.
Doc. 52 at 34-35.
We are concerned with the district court’s comment that it has “never” found drug
couriers to be minor participants. Indeed, the Guidelines’ commentary expressly provides that:
(1) “[t]he fact that a defendant performs an essential or indispensable role in the criminal activity
is not determinative,” U.S.S.G. § 3B1.2 cmt. n.3(C); and (2) “a defendant who is convicted of a
drug trafficking offense, whose participation in that offense was limited to transporting or storing
drugs and who is accountable under [U.S.S.G. § 1B1.3] only for the quantity of drugs the
defendant personally transported or stored may receive an adjustment under this guideline,” id. §
3B1.2 cmt. n.3(A) (emphasis added).
Notably, however, Monzo did not raise any question at the sentencing hearing about any
of the district court’s comments, or even suggest that the district court relied on improper factors
in its analysis. And, on appeal, Monzo only has argued generally that he is entitled to a minor-
role reduction. See United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (“[F]or a
defendant to preserve an objection to her sentence for appeal, [he] must raise that point in such
clear and simple language that the trial court may not misunderstand it. When the statement is
not clear enough to inform the district court of the legal basis for the objection, we have held that
the objection is not properly preserved.”) (citations and quotations omitted); United States v.
Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986) (noting that to preserve an issue for appeal,
“general objections or an objection on other grounds will not suffice”); see also United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a claim or issue
on appeal must plainly and prominently so indicate. Otherwise, the issue -- even if properly
preserved at trial -- will be considered abandoned.”). Thus, we doubt that Monzo has adequately
preserved the objection or that he has not abandoned it on appeal. See Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1335 (11th Cir. 2004) (“We will not address a claim that
has been abandoned on appeal.”).
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II.
We also find no merit to Monzo’s claim that the district court erred in
assessing three criminal history points for his 2001 Nevada felony drug-possession
conviction. In reviewing a district court’s use of the Guidelines, we review purely
legal questions de novo, and the district court’s factual findings for clear error.
United States v. White, 335 F.3d 1314, 1317 (11th Cir. 2003).
In determining a defendant’s criminal history category, the Sentencing
Guidelines instruct, in relevant part, the following:
a. Add 3 points for each prior sentence of imprisonment
exceeding one year and one month.
b. Add 2 points for each prior sentence of imprisonment of at least
sixty days not counted in (a).
c. Add 1 point for each prior sentence not counted in (a) or (b), up
to a total of 4 points . . . .
U.S.S.G. § 4A1.1. A “‘sentence of imprisonment’ means a sentence of
incarceration and refers to the maximum sentence imposed.” Id. § 4A1.2(b)(1). In
the case of an indeterminate sentence of one to five years, for example, the stated
maximum (or the maximum sentenced imposed), is five years. Id., cmt. n.2. In
But even if we were to assume that Monzo adequately preserved this issue in the district
court and has sufficiently advanced it on appeal, it is not clear that the district court erected any
per se role for couriers in drug cases. After all, the court reflected on the facts peculiar to this
case, including the very high purity of the methamphetamine, and the role played by the
defendant in packaging the controlled substance, and perhaps most notably, in directing the flow
of payments to specifically earmarked financial institutions.
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making this calculation, “criminal history points are based on the sentence
pronounced, not the length of time actually served.” Id. Among the prior
sentences of imprisonment allowed to be counted in the calculation of a
defendant’s criminal history category are “sentence[s] of imprisonment exceeding
one year and one month that [were] imposed within fifteen years of the defendant’s
commencement of the instant offense,” or “[a]ny other prior sentence that was
imposed within ten years of the defendant’s commencement of the instant
offense.” Id. § 4A1.2(e)(1),(2).
“If part of a sentence of imprisonment was suspended, ‘sentence of
imprisonment’ refers only to the portion that was not suspended.” Id. §
4A1.2(b)(2). In counting a revocation of probation in a defendant’s criminal
history calculation, the Sentencing Guidelines instruct courts to “add the original
term of imprisonment to any term of imprisonment imposed upon revocation.” Id.
§ 4A1.2(k) (emphasis added). “The resulting total is used to compute the criminal
history points for 4A1.1(a), (b), or (c), as applicable.” Id.
Here, Monzo argues that the district court erred in assigning three criminal
history points for his 2001 Nevada drug-possession conviction because it was not
proven that he served more than thirteen months’ imprisonment on the conviction,
nor was it shown that the sentence was imposed within fifteen years of the instant
offense. We disagree. It is true that Monzo originally received a suspended
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sentence for this conviction in state court, and was given two years’ probation in
October 2001. Had this been the sum total of his sentence associated with the
conviction, it would not have triggered additional criminal history points. See
U.S.S.G. § 4A1.2(b)(2). However, after being arrested on a probation violation in
December 2003, his probation was revoked, and he was sentenced to twelve-to-
thirty months’ imprisonment in February 2004.
For purposes of calculating Monzo’s criminal history points for this
conviction, we “add the original term of imprisonment to any term of
imprisonment imposed upon revocation.” Id. § 4A1.2(k). Monzo claims that the
phrase “term of imprisonment” found in § 4A1.2(k) is different from “sentence of
imprisonment,” and means the amount of time actually served. However, §
4A1.2(k)(1) uses the phrase “term of imprisonment imposed” specifically to
describe how the court is to calculate the “sentence of imprisonment” for purposes
of § 4A1.1(a). And, notably, the Guidelines consistently use the word “imposed”
to refer to the action of a sentencing court. See, e.g., id. § 1B1.4 (“In determining
the sentence to impose . . . the court may consider . . . any information concerning
the background, character and conduct of the defendant, unless otherwise
prohibited by law.” (emphasis added)); id. § 1B1.13 (“[T]he court may . . . impose
a term of supervised release . . . .” (emphasis added)); id. ch. 5 pt. A, introductory
cmt. (“For certain categories of offenses and offenders, the guidelines permit the
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court to impose either imprisonment or some other sanction or combination of
sanctions.” (emphasis added)). What’s more, Chapter 4 of the Guidelines
consistently -- by our count, about a dozen times -- uses the phrase “term of
imprisonment” synonymously with “sentence of imprisonment.” See, e.g., id. §
4A1.2(c)(1), (k)(1), (k)(2), (o), cmt. n.4, cmt. n.11; id. § 4B1.1 cmt. n.2, cmt.
n.3(B), (D); see also United States v. Ramirez-Perez, 643 F.3d 173, 177 (6th Cir.
2011) (holding that “term of imprisonment” in § 4A1.2(k) “has the same meaning”
as and is “interchangeable” with “sentence of imprisonment”); United States v.
Jasso, 587 F.3d 706, 710 (5th Cir. 2009) (“We conclude that ‘term of
imprisonment,’ as it appears in § 4A1.2 as a whole, is synonymous with ‘sentence
of imprisonment’ . . . .”). Yet Monzo has pointed to no place in the Guidelines
where the phrase “term of imprisonment imposed” somehow refers to actual time
served.
Here, the “term of imprisonment imposed upon revocation” by the prior
court was the range of twelve-to-thirty months’ imprisonment. Therefore, under
the plain language of the Guidelines, the “sentence of imprisonment” Monzo
received for this drug-possession conviction was the stated maximum sentence of
the range given -- i.e., thirty months. See id. §§ 4A1.2, cmt. n.2; 4A1.2(k). This is
true regardless of how long Monzo actually served. Id. cmt. n.2.
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Because the thirty-month sentence exceeded one year and one month, the
Guidelines recommend that three criminal history points be added to the
determination if the prior sentence was imposed within fifteen years of the
defendant’s commencement of the instant offense. Id. § 4A1.2(e)(1),(2).
According to the factual proffer for the instant offense, which was submitted in
support of Monzo’s guilty plea, Monzo admitted that “[b]etween August 25, 2014
and February 36, 2015, [he] would send methamphetamine from Las Vegas,
Nevada, to recipients in Miami, Florida, at the direction of the source of supply of
the drugs.” As a result, under the Guidelines, the sentence of imprisonment for the
2001 felony drug-possession conviction fell within the fifteen-year timeframe, and
the district court properly assessed three criminal history points for this offense.
Id. §§ 4A1.1(a), 4A1.2(e).
As for Monzo’s claim that this conviction was “presumptively void” because
the notice of revocation was filed outside his two-year probationary period, we are
unpersuaded. Generally, a defendant cannot collaterally attack the constitutionality
of a prior conviction for the first time in a sentencing proceeding. United States v.
Cooper, 203 F.3d 1279, 1287 (11th Cir. 2000). However, when a defendant
“sufficiently asserts facts that show that an earlier conviction is ‘presumptively
void,’ the Constitution requires the sentencing court to review [the] earlier
conviction before taking it into account.” Id. The burden is on the defendant to
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“lay a factual foundation for collateral review on the ground that the state
conviction was ‘presumptively void.’” Id.
In the district court, Monzo introduced state court documents apparently
indicating that he was placed on two years’ probation in October 2001, and that a
notice to seek revocation was not filed until January 2004. But, under Nevada law,
issuing an arrest warrant tolls the period of probation. See Nev. Rev. Stat. §
176A.500 (2005). Monzo did not show that his probation was not tolled in this
manner. Nor did the record otherwise show that Monzo had challenged the
revocation in state court. Without something more, Monzo has failed to show that
his probation revocation was “presumptively void.” Id. Accordingly, the district
court did not err in assessing three criminal history points for this prior conviction.
Finally, we can grant no relief based on Monzo’s claim that the district court
erred in assessing two criminal history points for his 2007 New Mexico
misdemeanor concealing-identity conviction for which he received a “credit time
served” sentence based on time he spent in custody awaiting adjudication for an
unrelated felony. Commentary to the Sentencing Guidelines provides that “[t]o
qualify as a sentence of imprisonment, the defendant must have actually served a
period of imprisonment on such sentence . . . .” U.S.S.G. § 4A1.2, cmt. n.2. We
have not directly addressed whether credit for time served awaiting adjudication on
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a wholly separate offense qualifies as a period of imprisonment that the defendant
“actually served” on the sentence in question.
But even if we assume, arguendo, that Monzo’s concealing-identity
conviction should not have been counted in the calculation of his criminal history
points, any error in assigning this conviction two criminal history points was
harmless. While we review de novo legal questions involved in the district court’s
application of the Guidelines, White, 335 F.3d at 1317, harmless errors must be
disregarded. Fed. R. Crim. P. 52. An error is harmless if it “had no substantial
influence on the outcome and sufficient evidence uninfected by error supports the
decision.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir.), cert. denied,
136 S. Ct. 267 (2015) (alterations and quotation omitted); see also Fed. R. Crim. P.
52(a) (defining “harmless error” as “[a]ny error, defect, irregularity, or variance
that does not affect substantial rights”). An error is not harmless if “there is a
reasonable likelihood that [it] affected the defendant’s substantial rights.” Rivers,
777 F.3d at 1316 (quotation omitted).
Monzo claims that the error was not harmless because he erroneously
received five criminal history points that significantly affected his sentence.
Without them, he says, he would have only been in a criminal history category I,
and would have been eligible for relief under the Safety Valve, U.S.S.G. § 5C1.2.
Section 5C1.2 of the Sentencing Guidelines, the “Safety Valve” provision, only
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allows a sentencing court to sentence a defendant without regard to any statutory
minimum sentence if the court finds that the defendant, inter alia, “does not have
more than 1 criminal history point, as determined under the sentencing guidelines .
. . .” U.S.S.G. § 5C1.2(a). The statutory mandatory minimum sentence for
Monzo’s offense -- conspiracy to possess with intent to distribute 50 grams or
more of methamphetamine -- is ten years’ imprisonment, and the statutory
maximum is life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A) and 846.
In this case, the district court sentenced Monzo to the statutory mandatory
minimum sentence of 120 months’ imprisonment because he did not qualify for
relief under the Safety Valve. As we’ve already explained, the district court
properly counted and assessed three points for Monzo’s Nevada felony drug-
possession conviction -- which accounts for three of the five points that Monzo
claims were not harmless. In addition to the three points Monzo received for that
conviction, he also received one point for his conspiracy-to-distribute-an-imitation-
controlled-substance conviction, resulting in a total of four criminal history points.
Monzo does not challenge the point he received for his imitation-controlled-
substance conviction.
On this record, even if the district court erred in calculating Monzo’s
concealing-identity conviction in the computation of his criminal history category,
the error was harmless. Without the two points for his concealing-identity
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conviction, Monzo still has four criminal history points -- and with more than one
criminal history point, he is not eligible for relief under the Safety Valve. As a
result, the district court could not have disregarded the statutory mandatory
minimum for his offense. U.S.S.G. § 5C1.2(a). Rather, the district court was
required to sentence Monzo to at least the statutory minimum sentence of 120
months’ imprisonment, which is exactly what he received. Any claimed error
concerning the concealing-identity conviction, therefore, would be harmless,
because it had no influence, much less any “substantial influence,” on his statutory
minimum sentence. Rivers, 777 F.3d at 1316.
AFFIRMED.
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