[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 6, 2005
No. 04-15558
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00109-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTOS ANGEL HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 6, 2005)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Santos Angel Hernandez appeals his 135-month sentence for two drug
charges. On appeal, Hernandez argues that the district court: (1) clearly erred in
failing to provide a minor role reduction under U.S.S.G. § 3B1.2(b); and
(2) committed statutory United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005) error. We now AFFIRM in part and VACATE and REMAND in part for
resentencing.
I. BACKGROUND
According to the Presentence Investigation Report (“PSI”), a U.S. Coast
Guard team boarded a fishing vessel, the “El Almirante,” on 7 March 2004, and
seized 133 bales of cocaine, weighing 2,629 kilograms. The El Almirante had a
four-man crew and one captain. Hernandez was one of the four crew members
aboard the ship. The El Almirante had obtained the cocaine at sea from another
fishing vessel, the “Siete Mares.” The Coast Guard later intercepted the Siete
Mares, which had six crewmen and a captain, and found traces of cocaine aboard
that vessel.
In a two-count indictment, a grand jury charged Hernandez and other
defendants with: (1) possession with the intent to distribute cocaine, in violation of
46 U.S.C. app. § 1903(a), (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii),
(Count 1); and (2) conspiracy to possess with intent to distribute cocaine, in
violation of 46 U.S.C. app. § 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii),
2
(Count 2). The district court accepted Hernandez’s guilty plea as to Counts 1 and
2.
The probation officer determined that Hernandez’s base offense level was
38, pursuant to U.S.S.G. § 2D1.1(c)(1), because the offense involved more than
150 kilograms of cocaine, which was then reduced three levels for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1(a), (b). With a total offense level of
35 and a criminal history category of I, Hernandez’s guideline sentence range was
168 to 210 months. Hernandez objected to the officer’s failure to provide a
two-level reduction for having a minor role in the offense, pursuant to U.S.S.G. §
3B1.2(b).
Hernandez also moved for an order declaring the Guidelines to be
unconstitutional following Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004). At the 9 August 2004 sentencing hearing, the district court denied the
motion and found the Guidelines to be constitutional based on our precedent at that
time. However, the court agreed to continue sentencing for the parties to
determine whether Hernandez should be given a safety-valve reduction.
At the continued sentencing hearing, Hernandez objected to the PSI’s failure
to include a minor role reduction because his role in the overall conspiracy was
minor compared with others as (1) he was merely a crew member on the fishing
3
vessel, and (2) he had no equity interest in the cocaine. The government contended
that there was nothing to distinguish Hernandez from any of the 11 other
defendants involved in the case and the drug quantity involved counseled against a
minor role. The court overruled the objection and found that the evidence
suggested that Hernandez’s role was the same as other crew members’, making
him equally culpable. Hernandez renewed his argument that the Guidelines were
unconstitutional, which the court denied. The district court then sentenced
Hernandez to 135 months of imprisonment and three years of supervised release
for Counts 1 and 2 to run concurrently.
II. DISCUSSION
A. Minor-Role Reduction
Hernandez argues that as a mere crewman, he was entitled to a minor role
reduction because (1) he did not own, sell, or distribute drugs, and (2) his role was
small in comparison with the drug activity targeted by Operation Panama Express.
As an initial matter, we have held that Booker did not alter our review of a district
court’s application of the Guidelines. See United States v. Crawford, 407 F.3d
1174, 1178 (11th Cir. 2005). Because a district court must consult the Guidelines
during sentencing, the court must “calculate the Guidelines range accurately.” Id.
at 1179. We review a district court’s decision regarding a defendant’s role in an
4
offense for clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 937
(11th Cir. 1999) (en banc). The defendant bears the burden of proving, by a
preponderance of the evidence, that he is entitled to a role reduction. See id. at
939.
A two-level minor role reduction, pursuant to U.S.S.G. § 3B1.2(b), is
warranted if the defendant is less culpable than most other participants. U.S.S.G.
§ 3B1.2, comment. (n.5). For a sentencing court to determine whether to grant a
minor-role reduction, it considers two principles. De Varon, 175 F.3d at 940.
First, the court must measure the defendant’s role against the relevant conduct for
which the defendant is being held accountable. Id. Drug quantity is “a material
consideration in assessing a defendant’s role” in the relevant conduct, and we have
“not foreclose[d] the possibility that amount of drugs may be dispositive – in and
of itself – in the extreme case.” Id. at 943. We have noted that “[o]nly if the
defendant can establish that []he played a relatively minor role in the conduct for
which []he has already been held accountable – not a minor role in any larger
criminal conspiracy – should the district court grant” a minor-role reduction. Id. at
944.
The second prong of the minor-role reduction analysis permits a district
court, “where the record evidence is sufficient . . . [, to] measure the defendant’s
5
conduct against that of other participants in the criminal scheme attributed to the
defendant.” See id. at 934. “The district court must determine that the defendant
was less culpable than most other participants in her relevant conduct.” Id. at 944.
However, the court only can consider participants who are (1) “identifiable or
discernable from the evidence,” and (2) “involved in the relevant conduct
attributed to the defendant,” which precludes “[t]he conduct of participants in any
larger criminal conspiracy.” Id. In the drug courier context, relevant
considerations in granting a minor-role reduction include the quantity of drugs
being carried, the fair market value of drugs, the amount of money paid to the
courier, the courier’s equity interest in the drugs, and the courier’s role in planning
and distributing the drugs. Id. at 945.
We conclude that the district court did not clearly err in denying Hernandez
a minor-role reduction. First, there was a large amount of cocaine involved, and
we have not eliminated this as a relevant factor for whether a district court may
consider the reduction. See De Varon, 175 F.3d at 943. Second, Hernandez’s role
was not appreciably different from any other crew member. Thus, the district
court’s denial of a minor-role reduction was not clearly erroneous.
B. Booker Statutory Error
Next, Hernandez argues that it was Booker error for the district court to
6
sentence him under a mandatory Guidelines system. Because Hernandez objected
to the use of the Guidelines in sentencing him, we review his sentence de novo.
See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam). We will
reverse the district court only if the error was harmful. See United States v.
Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (per curiam). The government
has the burden of showing that non-constitutional error was harmless. Id. at 1292.
In Booker, the Supreme Court held that the Sixth Amendment right to trial
by jury is violated where “under a mandatory guidelines system a sentence is
increased because of an enhancement based on facts found by the judge that were
neither admitted by the defendant nor found by the jury.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, ___ U.S. ___, 125
S. Ct. 2935 (2005). However, it is not error to “use [] extra-verdict enhancements
in a non-mandatory guidelines system.” Id. at 1300. Thus, there are two types of
errors in sentencing: (1) the constitutional error of using “extra-verdict
enhancements to reach a guidelines result that is binding on the sentencing judge”;
and (2) the error of applying the Guidelines in a mandatory fashion. See United
States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005).
“A non-constitutional error is harmless if, viewing the proceedings in their
entirety, a court determines that the error did not affect the [sentence], or had but
7
very slight effect. If one can say with fair assurance . . . that the [sentence] was not
substantially swayed by the error, the [sentence] is due to be affirmed even though
there was error.” Mathenia, 409 F.3d at 1292 (citations and internal quotation
marks omitted). In the context of non-constitutional Booker error, we have found a
district court’s sentence under the mandatory Guidelines system to be harmless
error when the district court: (1) stated that it would impose the same sentence
even if the Guidelines were advisory, Mathenia, 409 F.3d at 1292; and
(2) sentenced the defendant to the highest sentence in the Guideline range and
considered sentencing the defendant to the statutory maximum, see United States
v. Gallegos-Aguero, 409 F.3d 1274, 1277 (11th Cir. 2005) (per curiam).
We conclude that the district court’s mandatory application of the
Guidelines was not harmless. As the government concedes, the district court
committed statutory Booker error by applying the Guidelines as mandatory, and
there is no evidence that the district court would have imposed the same sentence
had it known the Guidelines were advisory. Accordingly, we vacate Hernandez’s
sentence and remand to the district court for resentencing.
III. CONCLUSION
Hernandez appeals his 135-month sentence for possession with intent to
distribute cocaine and conspiracy to possess and distribute cocaine. As we have
8
explained, the court did not err when it denied Hernandez’s request for a minor-
role reduction of his sentence, but the district court did commit reversible error
when it applied the Guidelines as mandatory. Accordingly, we AFFIRM in part
and VACATE and REMAND in part for resentencing.
9