[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 1, 2006
No. 06-10858 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00026-CR-T-17-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR ARBOLEDA CAMPAZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 1, 2006)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Hector Arboleda Campaz (Campaz) appeals the district court’s imposition of
two 135-month concurrent sentences. The sentences followed his guilty plea to
charges of conspiracy to possess and possession with intent to distribute five
kilograms or more 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), (g), (j). He argues that the district court erred in failing to grant a
minor-role reduction and in imposing unreasonable sentences. We affirm.
I.
Campaz first challenges the district court’s refusal to grant him a minor-role
adjustment to his base offense level. He contends that the court did not properly
consider his limited role in the transportation of the cocaine and did not properly
balance his culpability relative to that of the other participants. Campaz argues that
he was “simply a mariner” with no leadership role. He received a flat fee for the
delivery and was only expected to perform mundane duties on the ship. The
district court found that a minor-role reduction was not appropriate because the
ship was transporting such a large amount of cocaine (2, 647 kilograms), and
Campaz, a general crew member, was hired to do whatever was necessary to make
the delivery. We review a district court’s determination of a defendant’s role in an
offense under the clearly erroneous standard. See United States v. De Varon, 175
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F.3d 930, 937–38 (11th Cir. 1999) (en banc).
A district court may award a two-level reduction in a defendant’s offense
level if it determines that he was a “minor participant” in the criminal activity.
U.S.S.G. § 3B1.2(b). A defendant is a “minor participant” if he is “less culpable
than most other participants,” but has a role that “could not be described as
minimal.” U.S.S.G. § 3B1.2, cmt. (n.5). The defendant bears the burden of
proving that he is entitled to the reduction by a preponderance of the evidence. De
Varon, 175 F.3d at 939.
In determining whether a minor-role reduction is warranted, a district court
must: “First, and most importantly . . . measure the defendant’s role against the
relevant conduct for which [he] was held accountable at sentencing . . . .” Id. at
945. In some circumstances, the amount of drugs will be dispositive. Id. at 943.
Second, a district court may measure the defendant’s role against that of the other
participants. Id. at 944. However, “[t]he fact that a defendant’s role may be less
than that of other participants engaged in the relevant conduct may not be
dispositive of role in the offense, since it is possible that none are minor . . .
participants.” Id.
We find no clear error in the district court’s decision to deny Campaz’s
request for a minor-role reduction. As to the first prong of the De Varon test,
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Campaz pleaded guilty to knowingly and willfully conspiring to transport drugs
and knowingly and intentionally possessing drugs with an intent to distribute. In
measuring Campaz’s individual contribution against the crimes charged, the
district court did not clearly err. Campaz knew of the nature of the voyage and was
on board to do whatever was necessary to carry out the delivery. Based on the
sheer volume of narcotics and Campaz’s knowledge of the shipment’s illegality,
the district court properly denied the level reduction. Id. at 943 (“[B]ecause the
amount of drugs in a courier’s possession . . . may be the best indication of the
magnitude of the courier’s participation in the criminal enterprise, we do not
foreclose the possibility that [the] amount of drugs may be dispositive—in and of
itself—in the extreme case.”). As we held in United States v. Asseff, 917 F.2d
502, 507 (11th Cir. 1990), a defendant is generally not entitled to a minor-role
reduction where a “great amount of cocaine [is] involved,” and the defendant has
“apparent knowledge of [the] criminal activity.” Notably, only 278.60 kilograms
of cocaine was recovered in Asseff, as compared to the 2,647 kilograms here. Id.
at 504. Regardless of whether Campaz knew the ultimate destination of the
shipment, he knew that the boat’s cargo was a large quantity of cocaine.
The district court did not have to reach the second prong of the De Varon
analysis. De Varon, 175 F.3d at 945 (recognizing “that in many cases [the first
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method] of analysis will be dispositive”). Even so, Campaz cannot show that he
was less culpable than most of the other participants. “[A] defendant is not
automatically entitled to a minor role adjustment merely because [he] was
somewhat less culpable than the other discernable participants. Rather, the district
court must determine that the defendant was less culpable than most other
participants in [his] relevant conduct.” Id. at 944. Of the eight men onboard,
Campaz only distinguishes the conduct of two (the captain and engineer), but he
cannot distinguish himself from the other five sailors.
Campaz’s reliance on United States v. Dorvil, 784 F. Supp. 849 (S.D. Fla.
1991), is misplaced. Aside from not being binding precedent on this court, the
facts of Dorvil are distinguishable from those of this case. In Dorvil, only 227
kilograms of cocaine were being transported, as opposed to the 2, 647 kilograms at
issue here. Id. at 850. The defendants in Dorvil were not aware of the illegality of
their conduct, whereas Campaz was fully aware of what he was doing. Id. The
grant of a sentence reduction in Dorvil has no bearing on the facts here. The
district court’s denial of the minor-role reduction was not clearly erroneous.
II.
Campaz also contends that his sentences are unreasonable because the
district court failed to properly consider the mitigating evidence he offered. He
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claims that the court improperly disregarded evidence of his age, economic
situation, troubled childhood, limited education, and health problems. Further,
Campaz asserts that the court should have taken into consideration the small
amount of money he was paid, and the fact that an equally culpable codefendant
received a lesser sentence and a more culpable codefendant received the same
sentence as Campaz.
“Pursuant to the Supreme Court’s instructions in Booker, we review a
defendant’s ultimate sentence, imposed after the district court has consulted the
Guidelines and considered the factors set forth at 18 U.S.C. § 3553(a), for
reasonableness. Our reasonableness review is ‘deferential’ and focuses on whether
the sentence imposed fails to achieve the purposes of sentencing as stated in §
3553(a).” United States v. Pope, 461 F.3d 1331, 1333 (11th Cir. 2006) (internal
citations omitted).
A party challenging a sentence bears the burden of establishing that a
sentence is unreasonable in light of the § 3553(a) factors and the record established
below. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Some factors
listed in § 3553(a) are: (1) the nature and circumstances of the offense; (2) the
need for the sentence imposed to reflect the seriousness of the offense, deter
criminal activity, and protect the public from future crimes by the defendant; and
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(3) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct. See 18 U.S.C.
§ 3553(a)(1)-(2), (6). Although a sentence within the guideline range is not per se
reasonable, it usually will be. Talley, 431 F.3d at 788. A district court need not
mention each of the § 3553(a) factors specifically. United States v. Scott, 426 F.3d
1324, 1329 (11th Cir. 2005).
We find that, in fashioning Campaz’s sentence, the district court properly
considered the record and the § 3553(a) factors. The court noted Campaz’s
difficult economic circumstances and need to provide for his family, but it
determined that these facts failed to justify his criminal participation in
transporting 2,647 kilograms of cocaine. The court recognized the need for
deterrence and the substantial danger that such a large shipment of cocaine would
present to the United States. We find that the court fully considered the mitigating
evidence presented. Some of the facts Campaz urges on appeal were not argued
during the sentencing hearing, although the district court had access to those facts
in the presentence investigation report. There is nothing to indicate that it did not
consider them. The court sentenced Campaz at the lowest end of the Guideline
range, and the statutory maximum was life.
Campaz further argues that his sentences were unreasonable when compared
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to the sentences imposed on two of his codefendants. First, he asserts that one of
his fellow crewman was equally responsible and yet received a sentence of only 87
months, instead of the 137 months Campaz received. Second, he argues that one
codefendant, who served as the engineer, was more culpable than he and yet
received the same sentence. While 18 U.S.C. § 3553(a)(6) speaks of “the need to
avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct,” that principle generally applies more
broadly outside the codefendant context, and the “[d]isparity between the sentences
imposed on codefendants is generally not an appropriate basis for relief on appeal.”
United States v. Regueiro, 240 F.3d 1321, 1325–26 (11th Cir. 2001). “As the
majority of circuit courts has recognized, to adjust the sentence of a co-defendant
in order to cure an apparently unjustified disparity between defendants in an
individual case will simply create another, wholly unwarranted disparity between
the defendant receiving the adjustment and all similar offenders in other cases.”
United States v. Chotas, 968 F.2d 1193, 1197–98 (11th Cir. 1992).
We refuse to create a never-ending cycle of sentence adjustment. But even
if we do compare the sentences imposed on codefendants, Campaz’s sentences
were still reasonable. The district court found equal fault between Campaz and the
codefendant he claims was more culpable. We have no reason to question that
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determination. Thus the two men were properly given the same sentence. Further,
we note that the codefendant that Campaz claims was equally culpable but
sentenced to a shorter term received a § 5K1.1 departure for providing substantial
assistance to the authorities. There was no “unwarranted sentence disparit[y]”
between the two. We conclude that the sentences imposed on Campaz were
reasonable.
AFFIRMED.
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