United States v. Pedro Garcia Gutierrez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 14, 2006
No. 06-10618 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00005-CR-FTM-33-SPC-0

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO GARCIA GUTIERREZ,

Defendant-Appellant.

________________________

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

(September 14, 2006)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
 Pedro Garcia Gutierrez appeals his 76-month sentence, imposed after he

pled guilty to conspiracy to possess with intent to distribute more than 1000

marijuana plants, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(vii), and possession with

intent to distribute more than 1000 marijuana plants, 21 U.S.C. § 841(a)(1),

(b)(1)(A)(vii). On appeal, he argues the district court clearly erred in attributing

11,152 marijuana plants to him for purposes of calculating his base offense level.

Specifically, he contends that he should only be held responsible for the 5376

plants seized from a grow house at 255 North Zambria Street, and asserts he cannot

be found responsible for the conduct of his co-conspirators at a grow house at 425

North Kennel Street. He further argues that, because he is less culpable than the

average co-conspirator, the district court should have granted him a minor-role

adjustment in his offense level, pursuant to U.S.S.G. § 3B1.2(b). We affirm.

The parties are familiar with the background facts, and we do not recount

them here. First, we reject Gutierrez’s argument that the district court clearly erred

by attributing 11,152 marijuana plants to him for purposes of calculating his base

offense level. A district court’s determination of the drug quantity used to

establish a defendant’s base offense level is reviewed for clear error. United States

v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). “When . . . a defendant

challenges one of the factual bases of his sentence as set forth in the PSI, the

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government has the burden of establishing the disputed fact by a preponderance of

the evidence.” United States v. Bernardine, 73 F.3d 1078, 1080 (11th Cir. 1996).

The Guidelines state that the base offense level shall include, “in the case of

a jointly undertaken criminal activity . . . , all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken criminal activity.”

U.S.S.G. § 1B1.3(a)(1)(B). If the case involves drugs, “the defendant is

accountable for all quantities of contraband with which he was directly involved

and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable

quantities of contraband that were within the scope of the criminal activity that he

jointly undertook.” U.S.S.G. § 1B1.3 cmt. n.2. The district court must first make

individualized findings concerning the scope of criminal activity undertaken by the

defendant, and then determine the drug quantities reasonably foreseeable in

connection with that level of participation. United States v. Ismond, 993 F.2d

1498, 1499 (11th Cir. 1993) (citing U.S.S.G. § 1B1.3 cmt. n.2). “If the court does

not make individualized findings, the sentence may nevertheless be upheld if the

record supports the amount of drugs attributed to a defendant.” Id.

After carefully reviewing the record, the sentencing transcript, and the

parties’ briefs, we conclude the district court had ample evidence to support its

finding that the quantity of marijuana plants seized at 425 North Kennel Street was

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both reasonably foreseeable and within the scope of Gutierrez’s criminal activity.

We therefore hold the district court did not clearly err in attributing 11,152

marijuana plants to Gutierrez for purposes of calculating his offense level.

Second, we conclude the district court did not clearly err by refusing to grant

him a minor-role adjustment in his offense level, pursuant to U.S.S.G. § 3B1.2(b).

We have “long and repeatedly held that 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 Guidelines permit a court to decrease a defendant’s offense level by two levels

if it finds that the defendant 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 his role cannot be described as minimal. U.S.S.G.

§ 3B1.2 cmt. n.5.

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

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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. Furthermore, “[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 [the] role in the offense, since it is possible that none are

minor . . . participants.” Id. 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. We have held, however, that the allegations of defense counsel at

sentencing “are an insufficient basis upon which to grant a downward departure.”

United States v. Kapelushnik, 306 F.3d 1090, 1095 (11th Cir. 2002).

Based on our review of the record, the sentencing transcript, and the parties’

briefs, we conclude Gutierrez has failed to carry his burden on this issue.

Gutierrez’s conduct involved the cultivation and care of well over 10,000

marijuana plants. Other than the allegations made by his counsel at sentencing, he

failed to proffer any evidence indicating that his responsibilities at the grow houses

were less vital to the enterprise than those of his co-conspirators, or that he was not

acting in equal relationship to the average co-conspirator at the grow houses. We

accordingly hold the district court did not clearly err in finding Gutierrez failed to

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establish he played a minor role in the offense, and we affirm his 76-month

sentence.

AFFIRMED.

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