[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 15, 2005
No. 05-11772 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00368-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARIA SANCHEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 15, 2005)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Jose Maria Sanchez appeals his 135-month sentence for
possession 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) and (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii),
and 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). Sanchez argues two issues on appeal, namely, that (1) the district
court clearly erred in denying Sanchez a minimal or minor role reduction, pursuant
to U.S.S.G. § 3B1.2(b); and (2) the district court’s imposition of a sentence of 135
months was unreasonable because the district court only considered one of the §
3553(a) factors, entitling Sanchez to re-sentencing under United States v. Booker,
543 U.S. __, 125 S. Ct. 738 (2005). We affirm.
I.
Sanchez first argues that the district court erred in denying him a minor role
adjustment because it improperly ruled that the large amount of cocaine involved
in the offense precluded a minor role adjustment. Sanchez contends he should
have been granted a minor role adjustment because he was only a crew member, he
had no ownership interest in the cocaine, he was paid little compared to the
cocaine’s value, and there were more people involved in this offense than those
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caught on the boat.
We have held that 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.1 United States v. De
Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). The Guidelines allow a
court to decrease a defendant’s offense level by four points if the court finds the
defendant was a minimal participant or by two points if the court finds the
defendant was a minor participant. U.S.S.G. § 3B1.2(a) and (b). A defendant is a
minimal participant if he is “plainly among the least culpable of those involved in
the conduct of a group.” § 3B1.2, comment. (n. 4). A defendant is a minor
participant if he “is less culpable than most other participants, but whose role could
not be described as minimal.” § 3B1.2, comment. (n. 5).
The party seeking the downward adjustment bears the burden of establishing
the defendant’s role was minor by a preponderance of the evidence. De Varon,
175 F.3d at 939. In determining whether a mitigating role reduction is warranted, a
district court examines: (1) the defendant’s role against the relevant conduct for
which he was held accountable, and (2) the defendant’s role in comparison to the
other participants. Id. at 940. When the relevant conduct attributed to a defendant
1
This standard of review survives Booker. See United States v. Crawford, 407
F.3d 1174, 1178 (11th Cir. 2005) (“We agree with the Fifth Circuit that Booker does
not alter our review of the application of the Guidelines.”).
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is identical to his actual conduct, he cannot prove that he is entitled to a minor-role
adjustment simply by pointing to some broader criminal scheme for which he was
not held accountable. Id. at 941.
We conclude that the district court’s denial of a minor role adjustment is
supported by the record under the applicable two-pronged analysis established in
De Varon, 175 F.3d 930. Accordingly, the district court did not err in determining
that Sanchez did not qualify for a minor role reduction.
II.
Sanchez also argues that his sentence was unreasonable because the district
court did not adequately consider, elaborate on, or discuss all of the § 3553(a)
factors, as required by the holding in Booker, 543 U.S. __, 125 S. Ct. 738.
According to Sanchez, the district court only considered one factor, sentence
disparity, and did not consider other § 3553 factors in determining Sanchez’s
sentence.
Under Booker, we review a defendant’s ultimate sentence for
“unreasonableness.” 543 U.S. at ___, 125 S. Ct. at 765. Specifically, the United
States Supreme Court has directed sentencing courts to consider the following
factors in imposing sentences under the advisory Guidelines’s scheme:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
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– (A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner; (3) the kinds of
sentences available; (4) the kinds of sentence and the sentencing range
established . . . [from the Guidelines]; and (5) any pertinent policy
statement . . .; (6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of
similar conduct; and (7) the need to provide restitution to any victims
of the offense.
18 U.S.C. § 3553(a); Booker, 125 S. Ct. at 765-66.
We clarified that we first evaluate, using pre-Booker precedent, whether the
district court correctly interpreted and applied the Guidelines to determine the
appropriate advisory Guideline range. Crawford, 407 F.3d at 1178-79. As we
noted, “the district court remains obliged to ‘consult’ and ‘take into account’ the
Guidelines in sentencing [the defendant],” and the “reasonableness” standard
applies to the ultimate sentence imposed. Id. We have held that, “nothing in
Booker or elsewhere requires the district court to state on the record that it has
explicitly considered each of the § 3553(a) factors or to discuss each of the
§ 3553(a) factors.” United States v. Scott, No. 05-11843, ___ F.3d ___ (11th Cir.
Sept. 27, 2005). The § 3553(a) factors serve as guides for the district and appellate
courts in determining whether a sentence is reasonable. United States v.
Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). However, we have declined to
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hold sentences within the Guideline range per se reasonable. Id.
We conclude that Sanchez’s 135-month sentence is reasonable. As noted
above, Sanchez’s sentence was within the Guidelines range, one of the explicit §
3553(a) factors. 18 U.S.C. § 2553(a)(4). Further, the record shows the district
court consulted the Guidelines and made an accurate computation of the
Guidelines range. The district court also considered the other § 3553(a) factors and
nothing in the record convinces us that the sentence was unreasonable in light of
these factors.
Because we conclude that Sanchez’s ultimate sentence was reasonable, we
affirm.
AFFIRMED.
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