United States v. Abelardo Cuero Arboleda

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
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December 21, 2005
THOMAS K. KAHN
No. 05-11502 CLERK
Non-Argument Calendar
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D. C. Docket No. 04-00243-CR-T-17-MSS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ABELARDO CUERO ARBOLEDA,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 21, 2005)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:
After pleading guilty, Defendant Abelardo Cuero Arboleda appeals his 135-

month sentence for: (1) aiding and abetting the possession with intent to distribute

five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction

of the United States, in violation of 46 App. U.S.C. §§ 1903(a),(g), and 21 U.S.C.

§ 960(b)(1)(B)(ii); and (2) conspiracy to possess with intent to distribute five

kilograms or more of cocaine while on board a vessel subject to the jurisdiction of

the United States, in violation of 46 App. U.S.C. §§ 1903(a), (g), and (j), and 21

U.S.C. § 960(b)(1)(B)(ii). After review, we affirm.

I. FACTUAL BACKGROUND

On May 15, 2004, the United States Coast Guard observed a Columbian

fishing vessel, the Estrella del Sur, pull up along side a “go-fast” boat near Costa

Rica to supply it with fuel and food. Upon seeing the Coast Guard, both the go-

fast boat and the Estrella del Sur fled. As the boats fled, the Coast Guard observed

the “go-fast” crew drop approximately 30 bales of cocaine into the ocean.1 After

the Coast Guard apprehended the Estrella del Sur, the 8-man crew, including

Defendant Arboleda, were arrested.

At sentencing the district court concluded, over the defendant’s objection,

that the defendant was responsible for at least 150 kilograms of cocaine. With a

1
The Coast Guard recovered one of the bales of cocaine and determined that it contained
approximately 20 kilograms of cocaine.

2
criminal history category I and an adjusted offense level of 33, the applicable

guidelines range was 135-168 months’ imprisonment. After explicitly stating that

the guidelines were advisory under United States v. Booker, 543 U.S. 220, 125

S. Ct. 738 (2005), the district court sentenced Arboleda to 135 months’

imprisonment, stating that “the sentence imposed is sufficient, but not greater than

necessary to comply with the statutory purposes of sentencing.”

II. DISCUSSION

After Booker, and even under an advisory guidelines scheme, district courts

must still correctly calculate the guidelines range when determining a defendant’s

sentence. See United States v. Crawford, 407 F.3d 1174, 1178 (11 th Cir. 2005)

(stating that, after Booker, district courts must consult the Guidelines and “[t]his

consultation requirement, at a minimum, obliges the district court to calculate

correctly the sentencing range prescribed by the Guidelines”). Defendant

Arboleda’s challenge to the district court’s factual finding that he was responsible

for at least 150 kilograms of cocaine is without merit. The Coast Guard observed

the crew of the go-fast boat dumping approximately 30 bales of cocaine into the

ocean. The Coast Guard recovered one of these bales and determined that it

contained 20 kilograms of cocaine. As the district court determined, the

government was likely “conservative in their estimate of how much cocaine was

3
involved here.” Thus, we affirm the district court’s calculation of Defendant’s

guidelines range as 135-168 months’ imprisonment.

The defendant also argues that the district court erred by treating the

guidelines range as mandatory even after Booker.2 However, as noted above, the

district court explicitly stated that the guidelines were advisory under Booker.

Furthermore, in sentencing Arboleda to 135 months’ imprisonment, the district

court stated that “the sentence imposed is sufficient, but not greater than necessary

to comply with the statutory purposes of sentencing.” Given the record in this

case, we cannot conclude that the district court applied the guidelines in a

mandatory fashion. Consequently, we affirm Arboleda’s 135-month sentence.

AFFIRMED.

2
During the sentencing hearing, the district court stated that
there remains great confusion about all of this [Booker changes to the Sentencing
Guidelines]. I am waiting for the people who have the power to finally make up
their minds what are we doing. I was around in 1984 when all of this started with
the minium mandatories and then the guidelines in ‘86. I just work here.
I am just trying to follow whatever it is people at higher pay grades are telling
me to do. And I don’t think we need to add to the confusion. I say that respectfully
to all my brothers and sisters that are going off in other different directions here. But
we are going to have enough cases coming back now, and we do need to have
stability and predictability, so that lawyers can advise their clients.
We don’t need guessmanship. So I understand your argument. Please
understand what I am trying to do.

It would have been improper for a district court to adopt a post-Booker rule that, in order to establish
predictability and stability, sentences would still be within the guidelines range in its particular
courtroom. Although the district court’s statements arguably provide some support for defendant’s
contentions, we do not read the district court’s statements in this case as creating any such per se
rule. Rather, the district court expressly acknowledged that the guidelines were advisory and that
“the sentence imposed is sufficient, but not greater than necessary to comply with the statutory
purposes of sentencing.”