[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 23, 2005
No. 04-16356
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00223-CR-T-27MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNULFO TORREZ OROVIO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 23, 2005)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Arnulfo Torrez Orovio appeals his 135-month sentence for drug trafficking
while aboard a vessel, in violation of 46 App. U.S.C. § 1903(a), (g), and (j) and 21
U.S.C. § 960(b)(1)(B)(ii). On appeal, Orovio argues that the district court erred by
denying him a role reduction because: (1) he was less culpable than most other
participants and was not a leader, manager, or organizer; and (2) his relevant
conduct was limited to one shipment of cocaine, and not the larger drug
distribution conspiracy. Orivio also argues that the district court erred by simply
imposing the minimum sentence in the guideline range, under a mandatory
guidelines system, without considering the factors listed in 18 U.S.C. § 3553(a), as
is now required under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160
L. Ed. 2d 621(2005).
I. Mitigating-Role Reduction
“[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.” United States v. De Varon, 175
F.3d 930, 937 (11th Cir. 1999) (en banc). The proponent of the reduction bears the
burden of proving the mitigating role in the offense by a preponderance of the
evidence. Id. at 939.
The Sentencing Guidelines permit a court to decrease a defendant’s offense
level by four levels if it finds that the defendant was a “minimal participant” in the
2
criminal activity, or by two levels if it finds that the defendant was a “minor
participant” in the criminal activity. U.S.S.G § 3B1.2(a), (b). In determining
whether a mitigating-role reduction is warranted, a district court “should be
informed by two principles discerned from the Guidelines: first, the defendant’s
role in the relevant conduct for which [he] has been held accountable at sentencing,
and, second, [his] role as compared to that of other participants in [his] relevant
conduct.” De Varon, 175 F.3d at 940. “Only 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 downward adjustment for minor role in the offense.” Id. at
944.
Because the record demonstrates that Orovio (1) was held accountable only
for those drugs that he handled, and (2) failed to show, by a preponderance of the
evidence, that his conduct in steering the boat and throwing the cocaine into the
water rendered him less culpable than other identifiable participants, the district
court did not clearly err by denying his request for a mitigating-role reduction.
II. Booker
Because Orovio failed to lodge an objection to his sentence based on
Booker, or any constitutional grounds, in the court below, we review for plain error
3
only. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.
2005). “An appellate court may not correct an error the defendant failed to raise in
the district court unless there is: (1) error, (2) that is plain, and (3) that affects
substantial rights. If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(internal quotations omitted).
In Booker, the Supreme Court held that the mandatory nature of the federal
guidelines rendered them incompatible with the Sixth Amendment’s guarantee of a
right to a jury trial. Booker, 543 U.S. at ___,125 S. Ct. at 750-56. The Court ruled
that sentencing courts nevertheless must consider the factors set forth in 18 U.S.C.
§ 3553(a) when imposing sentences. Id. at ___, 125 S. Ct. at 765. We have held
that plain error exists where a district court imposes a sentence under the formerly
binding, mandatory guidelines. United States v. Shelton, 400 F.3d 1325, 1330-31
(11th Cir. 2005). We have further held, however, that, in order to prove that the
error affected his substantial rights, the third prong of plain error review, a
defendant must demonstrate “a reasonable probability of a different result if the
guidelines had been applied in an advisory instead of binding fashion by the
sentencing judge in this case.” United States v. Rodriguez, 398 F.3d 1291, 1301
4
(11th Cir. 2005), cert. denied, 125 S. Ct. 2935 (2005). Where “[t]he record
provides no reason to believe any result is more likely than the other,” a defendant
cannot prevail under plain error review. Id.
Because Orovio has failed to show that there is a reasonable probability that
the district court’s error in sentencing him under a mandatory guideline system
affected the outcome of his sentence, no reversible plain error occurred.
Accordingly, we affirm Orovio’s sentence.
AFFIRMED.
5