[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 24, 2005
No. 04-14194 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00109-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBINO OBREGON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 24, 2005)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Albino Obregon appeals his 135-month sentence for two drug charges. On
appeal, Obregon argues that the district court: (1) clearly erred by denying his
request for a mitigating-role reduction; and (2) committed reversible error, in light
of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States
v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), by applying the United States
Sentencing Guidelines as mandatory.
I. BACKGROUND
Obregon and his codefendants were charged with: (1) possession with intent
to distribute five or more kilograms of cocaine while aboard a vessel subject to the
jurisdiction of the United States, in violation of 21 U.S.C. § 960(b)(1)(B)(ii) and 46
U.S.C. app. §§ 1903(a) and (g) (Count One); and (2) 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, in violation of §§ 1903(a), (g), (j) and §
960(b)(1)(B)(ii) (Count Two). At a plea hearing before a magistrate judge,
Obregon pled guilty to both counts. According to the facts admitted by Obregon at
the plea hearing, he was a crew member on board the “Siete Mares,” a
Colombian-flagged fishing vessel that was used to transport approximately 133
bales of cocaine from Colombia to a point in the eastern Pacific Ocean, where the
drugs were transferred to another vessel, and, ultimately, seized by the U.S. Coast
Guard. According to the presentence investigation report (“PSI”), the two vessels
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involved in the offense carried a total of ten crew members and two captains.
The probation officer grouped Obregon's offenses together and set his base
offense level at 38, pursuant to U.S.S.G. § 2D1.1(c), based on a finding that 2,629
kilograms of cocaine were involved in the offense. The probation officer then
reduced Obregon's offense level by three, pursuant to U.S.S.G. § 3E1.1(a) and (b),
for acceptance of responsibility. At the sentencing hearing, the parties agreed that
Obregon had met the requirements for the safety-valve reduction, and, therefore,
pursuant to U.S.S.G. § 2D1.1(b)(6), his offense level was reduced by an additional
two levels. Given a total offense level of 33 and a criminal history category of I,
Obregon's Guideline imprisonment range was 135 to 168 months.
Obregon objected to the PSI, arguing, inter alia, that he was entitled to a
mitigating-role reduction, and, therefore, pursuant to § 2D1.1(a)(3), his base
offense level should not have exceeded 30. According to Obregon, he was
significantly less culpable than the other participants in the offense because his
only role in the drug-smuggling operation was that of a cook aboard one of the
vessels.
At the sentencing hearing, Obregon objected that the Guidelines were
unconstitutional, in light of Blakely. The district court overruled this objection,
finding that the Guidelines were constitutional, both on their face and as applied to
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the facts of Obregon's case. The district court also overruled Obregon’s
mitigating-role objection, finding that he was not significantly less culpable than
the other participants in the offense. While acknowledging that there were likely
other, unidentified individuals who organized and financed the smuggling
operation, the court found that all crew members, including Obregon, were “an
essential aspect” of the smuggling operation, and that each of them assisted in the
loading and unloading of the drugs. R3 at 16. The court then sentenced Obregon
to a total of 135 months of imprisonment. The court noted that it was imposing a
low-end sentence in light of, inter alia, the defendant's age and the fact that such a
sentence was “substantial” and “adequately addresse[d] the seriousness of
[Obregon’s] conduct.” Id. at 19.
II. DISCUSSION
A. Mitigating-Role Reduction
First, we must decide whether the district court erred by denying Obregon’s
request for a mitigating-role reduction. Obregon argues that he was entitled to the
reduction because: (1) his role in the offense was that of a cook/crew member
aboard one of the vessels; (2) he did not have an ownership interest in the
drugs; (3) he received little compensation compared to the substantial value of the
drugs; and (4) his participation was minimal compared to the other unidentified
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individuals who planned and organized the smuggling operation. Because he was
entitled to this reduction, Obregon argues, his base offense level should not have
exceeded 30.
A sentencing court’s determination of a defendant’s role in an offense
constitutes a factual finding that is reviewed for clear error. See 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.
The Guidelines provide for a four-level reduction for a defendant who acts
as a minimal participant, a two-level reduction for a minor participant, and a three-
level reduction for cases falling in between the minor and minimal level. U.S.S.G.
§ 3B1.2. A minimal participant is a defendant who is “plainly among the least
culpable of those involved in the conduct of a group,” U.S.S.G. § 3B1.2, comment.
(n.4), while a minor participant means any participant “who is less culpable than
most other participants, but whose role could not be described as minimal,”
U.S.S.G. § 3B1.2, comment. (n.5). Moreover, when a defendant is convicted under
§ 960(b)(1), and he is entitled to a mitigating-role adjustment under § 3B1.2, his
base offense level may not be set higher than level 30. U.S.S.G. § 2D1.1(a)(3).
To determine whether a defendant is entitled to a mitigating-role reduction,
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the district court must first measure the defendant’s role in the offense against the
relevant conduct for which he has been held accountable. See Rodriguez De
Varon, 175 F.3d at 940. In cases where the defendant is a drug courier, relevant
factual considerations include, but are not limited to: (1) the amount of drugs
involved; (2) the fair market value of the drugs involved; (3) the amount of
compensation received by the courier; (4) the courier’s equity interest in the drugs,
if any; (5) the courier’s role in planning the scheme; and (6) the courier’s role, or
intended role, in the distribution of the drugs. See id. at 945. Second, the court
may compare the defendant’s culpability to that of other participants in the relevant
conduct, but “only to the extent that they are identifiable or discernable from the
evidence.” Id. at 944. “The conduct of participants in any larger criminal
conspiracy is irrelevant.” Id.
We conclude that the district court did not clearly err by denying Obregon’s
request for a mitigating-role reduction because: (1) it correctly assessed Obregon’s
role in connection with the conduct for which he was held accountable, and not in
connection with some larger criminal enterprise; and (2) Obregon failed to
demonstrate that he was less culpable than the majority of identifiable participants
in the offense. Accordingly, we affirm the district court’s denial of the
mitigating-role reduction.
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B. Booker Error
Obregon next argues that, in light of Booker, the district court committed
reversible error by applying the Guidelines as mandatory. Because the district
court should have considered the other factors enumerated in 18 U.S.C. § 3553(a)
when imposing sentence, Obregon argues that he is entitled to a remand for
resentencing.
Obregon is entitled to preserved-error review because he raised a timely
constitutional objection to the sentencing enhancements in the district court, and
we should remand for resentencing unless (1) no error was committed, or (2) the
error was harmless. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)
(per curiam). “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 very slight effect.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir.
2005) (per curiam) (citations, alterations, and internal quotations omitted). “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.” Id.
(citations, alterations, and internal quotations omitted).
In Booker, the Supreme Court held that Blakely applies to the Guidelines,
and reaffirmed its holding from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.
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Ct. 2348, 2362-63 (2000), that, “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at ___, 125 S.
Ct. at 746, 756. Because the Court determined that it was the mandatory nature of
the Guidelines that implicated the Sixth Amendment right to a jury trial, it held
that, in order to cure the Sixth Amendment violation while preserving
congressional intent, the following two provisions of the Sentencing Reform Act
must be severed and excised: 18 U.S.C. § 3553(b)(1) (which made the Guidelines
mandatory and binding on federal courts), and 18 U.S.C. § 3742(e) (which
established the appellate standards of review for sentences). Booker, 543 U.S.
at ___, 125 S. Ct. at 756-57. By severing these two provisions, the Supreme Court
made the Guidelines “effectively advisory.” Id. at ___, 125 S. Ct. at 757.
A district court potentially commits two types of error, under Booker, when
it sentences a defendant pursuant to a mandatory guideline scheme:
(1) constitutional error resulting from a Sixth Amendment violation; and (2)
non-constitutional, or statutory, error resulting from applying the guidelines as
mandatory. See United States v. Shelton, 400 F.3d 1325, 1329-31 (11th Cir.
2005). In Shelton, we held that the defendant’s Sixth Amendment rights were not
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violated because he had admitted the facts used to enhance his sentence by failing
to object to the statements contained in the PSI. Id. at 1330. Nonetheless, we held
that the district court committed statutory error by applying the Guidelines as
mandatory, rather than advisory. Id.
We have held that both statutory and constitutional Booker errors were
harmless where the district court expressly indicated that it would have imposed
the same sentence under an advisory guideline regime. See Mathenia, 409 F.3d
at 1292-93 (statutory error); United States v. Robles, 408 F.3d 1324, 1327-28 (11th
Cir. 2005) (per curiam) (constitutional error). Conversely, in Paz we held that
constitutional Booker error was not harmless where the court indicated that it
would have imposed a lesser sentence under an advisory guideline scheme. 405
F.3d at 948-49. Because the government bears the burden of demonstrating that a
statutory Booker error was harmless, the defendant’s case must be remanded for
resentencing where the effect of the error cannot be determined. See United States
v. Davis, 407 F.3d 1269, 1271-72 (11th Cir. 2005) (per curiam).
Upon review of the PSI and the sentencing transcript, and upon
consideration of the briefs, we discern reversible error. The district court
committed statutory Booker error by applying the Guidelines as mandatory, and
the government has failed to meet its burden of demonstrating that the error was
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harmless. Accordingly, we vacate Obregon’s sentence and remand to the district
court for resentencing.
III. CONCLUSION
Obregon appeals his 135-month sentence for possession with intent to
distribute cocaine and conspiracy to possess and distribute cocaine. As we have
explained, the court did not err when it denied Obregon’s request for a mitigating-
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.
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