United States v. Epifanio Moreno

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 18, 2006
No. 05-16281 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00084-CR-T-30-TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EPIFANIO MORENO,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(September 18, 2006)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

Epifanio Moreno appeals his 168 month sentence following his guilty plea
to conspiracy to possess with the intent to distribute five or more kilograms of

cocaine while on board a vessel subject to the jurisdiction of the United States,

pursuant to 46 app. U.S.C. §§ 1903(a), (g), (j); 21 U.S.C. § 960(b)(1)(B)(ii). The

district court correctly calculated the guidelines range and considered the factors in

18 U.S.C. § 3553(a). Because the resulting sentence was not unreasonable, we

AFFIRM.

I. BACKGROUND

According to the unobjected to facts in the presentence investigation report,

the USS BOONE was conducting counter-drug operations in the Eastern Pacific

when it spotted a go-fast vessel with Moreno on board. As the USS BOONE

approached, the go-fast vessel began maneuvering erratically, and two crew

members threw bales overboard. After unsuccessful attempts to stop the go-fast

vessel, the USS BOONE fired shots at the vessel to disable it.

Moreno jumped overboard, and the USS BOONE retrieved him from the

water. The USS BOONE boarding team discovered a dead body on board, which

was identified by the other crew members as that of the drug representative, who

was responsible for guarding drugs and conducting the sale of the drugs. The crew

members said that the drug representative killed himself with a handgun to avoid

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capture. Moreno stated that the drug representative told him to throw a rifle

overboard, which he did. After the drug representative shot himself, Romero

Borrero, one of the crew members, took the handgun and threw it in the water to

prevent Moreno from killing himself. The USS BOONE recovery team recovered

56 bales of cocaine from the ocean for a total of 2,800 pounds or 1,270 kilograms

of cocaine.

At the sentencing hearing, Moreno described his role in the offense as

minor. He also said that he lived in poverty and testified regarding his family

circumstances. The district court considered these facts and determined that, with

a criminal history category of I and a total offense level of 37, Moreno’s guidelines

imprisonment range was 210 to 262 months. Moreno argued, and the district court

subsequently agreed, that Moreno qualified for the safety valve provision, which

yielded a new guidelines range of 168 to 210 months imprisonment. The district

court determined that this sentence was sufficient, but not greater than necessary,

to comply with the statutory purposes of sentencing. On appeal, Moreno argues

that the sentence imposed by the district court was unreasonable because it failed

to impose a sentence below the guideline range, when (1) he was paid less than the

other crew members on the go fast boat; (2) he did not have special skills; and (3)

he was hired merely to load and unload the drugs.

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 II. DISCUSSION

We review for clear error the district court’s findings of fact and review the

application of the sentencing guidelines de novo. United States v. Gallo, 195 F.3d

1278, 1280 (11th Cir. 1999). After United States v. Booker, 543 U.S. 220, 125 S.

Ct. 738 (2005), the district court must correctly calculate the sentencing range

prescribed by the Sentencing Guidelines. United States v. Crawford, 407 F.3d

1174, 1178–79 (11th Cir. 2005). In this case, Moreno concedes that the guidelines

range was calculated correctly.

Once the district court has calculated accurately the guidelines range, it

“may impose a more severe or more lenient sentence,” which we review for

reasonableness. Id. at 1179. In determining whether a sentence is reasonable, the

district court should be guided by the § 3553(a) factors. United States v. Talley,

431 F.3d 784, 786 (11th Cir. 2005) (per curiam). Those factors include,

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.

Id.

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 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, 426 F.3d 1324, 1329 (11th Cir.

2005). “[A]n acknowledgment by the district court that it has considered the

defendant’s arguments and the factors in section 3553(a) is sufficient under

Booker.” Talley, 431 F.3d at 786. Although a sentence within the advisory

guidelines range is not per se reasonable, we ordinarily expect such a sentence to

be reasonable. Id. at 788. The burden of establishing that the sentence is

unreasonable in light of the record and the § 3553(a) factors lies with the party

challenging the sentence. Id.

Here, the record reveals that the district court considered the

§ 3553(a) sentencing factors and the correctly calculated, advisory guidelines range

when sentencing Moreno. After hearing Moreno characterize his role in the

offense as minor, the fact that he lived in poverty, and testimony regarding his

family circumstances, the district court determined that the sentence was sufficient,

but not greater than necessary, to comply with the statutory purposes of sentencing.

Furthermore, the court imposed a sentence at the low end of the guideline range.

Given these considerations, we conclude that the sentence was not unreasonable.

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 III. CONCLUSION

Moreno appeals his 168 month sentence following his guilty plea to

conspiracy to possess with the intent to distribute five or more kilograms of

cocaine while on board a vessel subject to the jurisdiction of the United States.

Because the district court correctly calculated the guidelines range and considered

the factors in 18 U.S.C. § 3553(a) and because Moreno failed to carry his burden of

showing that his sentence was unreasonable, the district court did not err.

AFFIRMED.

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