[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 23, 2005
No. 05-11435 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00297-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CASIANO BARAONA ESTUPINAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 23, 2005)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Casiano Baraona Estupinan appeals his 135-month sentence
imposed for conspiracy to possess with intent to distribute five or more kilograms
of cocaine while aboard a vessel subject to the jurisdiction of the United States, 46
App. U.S.C. §§ 1903(a),(j), and possession with intent to distribute five or more
kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United
States, 46 App. U.S.C. § 1903(a). Estupinan raises two issues on appeal:
(1) whether the district court clearly erred in not awarding him a minor-role
adjustment; and (2) whether the district court improperly sentenced him by failing
to consult the factors in 18 U.S.C. § 3553(a).
I.
Estupinan argues that his role in the offense can only be described as
insignificant and minor because he knew nothing more than at a certain point out in
the Pacific he was to off-load bales from a go-fast boat and then return to where he
started. He contends that in denying minor-role adjustments in similar cases,
district courts have relied on the language of United States v. De Varon,175 F.3d
930, 943 (11th Cir. 1999), that the amount of drugs under “extreme circumstances .
. . may be dispositive.” He asks us to distinguish the typical “boat case” from the
courier cases discussed in De Varon, and to announce that (1) the language
regarding the amount of drugs being dispositive does not apply to the typical boat
case, and (2) the district court can apply a minor-role adjustment despite the
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amount of drugs involved. He argues that he is far from the typical drug courier
who arrives at an airport and passes through customs, intentionally crosses borders,
and meets with the drop person. He argues that such carriers are more involved in
the planning than a typical “boat defendant” who is taken from a dock to a go-fast
boat already loaded with the bales and told he will be back at the dock in a day or
two. He argues that he had no knowledge of the scope or structure of the
enterprise, amount of drugs, fair market value of the drugs, or amount of money to
be paid to the courier, and was not involved in the scheme’s planning, or the
distribution of the drugs.
The district court is obligated to consult and correctly calculate the
Guidelines even though under United States v. Booker, 543 U.S. ___, 125 S. Ct.
738, 160 L. Ed. 2d 621 (2005), the Guidelines are merely advisory. United States
v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). Post-Booker, we continue to
review the district court’s application of the Guidelines as we did pre-Booker.
United States v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005). We review the
district court’s findings regarding whether a defendant qualifies for a minor-role
adjustment under the Guidelines for clear error. United States v. Ryan, 289 F.3d
1339, 1348 (11th Cir. 2002). The defendant has the burden of establishing his role
by a preponderance of evidence. Id. “So long as the basis of the trial court’s
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decision is supported by the record and does not involve a misapplication of a rule
of law, we believe that it will be rare for an appellate court to conclude that the
sentencing court’s determination is clearly erroneous.” De Varon, 175 F.3d at
945.
Pursuant to U.S.S.G. § 3B1.2(b), the defendant is entitled to a two-point
decrease in his offense level if he was a minor participant. According to the
commentary, the determination of whether a defendant qualifies for a decrease is
“heavily dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2 cmt. n.
3(c). A “minor participant” is a person who is “less culpable than most other
participants, but whose role could not be described as minimal.” Id. at cmt. n. 5.
The district court conducts a two-pronged analysis to determine if the
defendant warrants a minor-role adjustment. Ryan, 289 F.3d at 1348. “First, the
district court must assess whether a defendant’s particular role was minor in
relation to the relevant conduct attributed to him in calculating his base offense
level.” Id. Only if the first prong is met does the district court reach the second
prong, which “requires the district court to assess a defendant’s relative culpability
vis-a-vis that of any other participants.” Id. at 1348-49.
In De Varon, we recognized that a drug courier may or may not qualify for a
minor-role reduction adjustment, depending on his conduct in relation to the
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relevant conduct. De Varon, 175 F.3d at 942-43. We stated that the amount of
drugs imported is a material consideration in assessing the defendant’s role, and
reaffirmed our prior holding that the amount of drugs may be the dispositive factor
in the extreme case. Id. at 943. We further held that when measuring the
defendant’s conduct against other participants in the conspiracy, only participants
who are “identifiable and discernable from the evidence” are relevant, as opposed
to participants in any larger criminal conspiracy. Id. at 944. We recognized that a
non-exhaustive list of relevant factual considerations includes 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 record here demonstrates that Estupinan offered no evidence to show
that his participation in the possession with the intent to distribute the cocaine was
minor, or that he was less culpable than the other crew members. Thus, we
conclude that the denial of a minor-role adjustment was supported by the facts that
he was one of four crewmen hired to transport the cocaine; he knew that the
cocaine was on the boat; he got paid for his participation; and there was a large
amount of cocaine on the boat.
II.
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Estupinan also argues that the district court failed to consult the 18 U.S.C.
§ 3553(a) factors independently from the Guidelines calculation, erroneously
believing that the factors in § 3553(a) do not stand apart from the Guideline
calculation. He argues that the district court believed that the Guidelines and
18 U.S.C. § 3553(a) were synonymous, and violated Booker, by failing to consult
the § 3553(a) factors.
In Booker, the Supreme Court explained that, “[w]ithout the ‘mandatory’
provision, the [Sentencing Reform] Act nonetheless requires judges to take account
of the Guidelines together with other sentencing goals.” Booker, 543 U.S. at ___,
125 S. Ct. at 764. Post-Booker, sentences are still reviewed for reasonableness.
Id.; see also United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)
(noting that “Booker established a ‘reasonableness’ standard for the sentence
finally imposed on a defendant”). In determining whether a sentence is reasonable,
the court should be guided by the factors in 18 U.S.C. § 3553(a). Booker, 125 S.
Ct. at 765-66; United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005).
“These factors include the available sentences, the applicable Guideline range, the
nature and circumstances of the offense, and the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, provide just punishment for
the offense, and provide the defendant with needed medical care.” Winingear, 422
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F.3d at 1246 (citing 18 U.S.C. § 3553(a)). Although the court must be guided by
these factors, 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).
In Scott, we concluded that the district court had adequately considered the
§ 3553(a) factors in imposing the defendant’s sentence, where defense counsel
made a lengthy argument that statutory factors warranted a sentence below the
sentencing guideline range, the court stated it had considered the circumstances of
the charged offenses, and the court explicitly acknowledged it had considered the
defendant’s arguments and the statutory factors.
The record here demonstrates that the district court invited arguments on
how the § 3553(a) factors should affect the sentence, explicitly stated that in
determining Estupinan’s sentence it had considered the Sentencing Reform Act,
and applied the Guidelines as advisory. Thus, we conclude that the district court
did not violate Booker when imposing Estupinan’s sentence. For the foregoing
reasons, we affirm Estupinan’s senence.
AFFIRMED.
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