[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 28, 2006
No. 05-13183 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00545-CR-T-30-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO HURTADO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 28, 2006)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Orlando Hurtado appeals his sentence for two controlled substance
violations. Hurtado argues that (1) the district court violated his rights to trial by
jury and due process, under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), by declining to apply a four-level reduction for Hurtado’s minimal role in
the conspiracy and (2) the district court clearly erred by denying the reduction. We
affirm.
In October 2004, the U.S. Coast Guard observed Aventurero, a fishing boat,
refueling an unnamed “go-fast” vessel in international waters in the Pacific Ocean.
The Coast Guard suspected that the go-fast vessel was being used to transport
cocaine into the United States and boarded the vessel to inspect its cargo. The
Coast Guard discovered 2193 kilograms of cocaine and arrested the five-member
crew. The following day, the Coast Guard boarded the Aventurero, found five 55-
gallon fuel drums—four empty and one full—along with hoses, pumps, and tow-
lines, and arrested the seven men on board, including Hurtado. All 12 men were
indicted on two counts: possession with intent to distribute cocaine while aboard a
vessel subject to the jurisdiction of the United States, 46 U.S.C. app. § 1903(a), and
conspiracy to possess with intent to distribute cocaine while aboard a vessel subject
to the jurisdiction of the United States, id. § 1903(a), (j). Hurtado pleaded guilty to
both charges on January 5, 2005.
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At his sentencing hearing, Hurtado conceded the factual account of the
presentence investigation report. Hurtado objected to the failure of the report to
recommend a four-level reduction for being a “minimal participant” in the
conspiracy but did not argue that failure to apply the reduction would violate the
Constitution. U.S.S.G. § 3B1.2(a). The district court overruled Hurtado’s
objection but granted a two-level reduction for being a “minor participant.”
U.S.S.G. § 3B1.2(b). The district court calculated Hurtado’s total offense level to
be 27 and his advisory guidelines range to be 70 to 87 months of imprisonment and
sentenced Hurtado to 70 months of imprisonment.
This Court reviews de novo the constitutionality of a sentence, see United
States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005), but where the defendant fails to
preserve his argument for appeal, we reverse for plain error. United States v.
Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005). “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).
We first address Hurtado’s constitutional challenge to his sentence. Hurtado
argues that the district court violated his rights to trial by jury and due process by
failing to reduce his sentence for being a “minimal participant” in the conspiracy.
See § 3B1.2(a). Hurtado contends that Booker prohibits the district court from
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“finding that Mr. Hurtado was more than a minimal participant” because Hurtado
“did not admit to being anything more than a minimal participant” and “it was not
found beyond a reasonable doubt by a jury.” This argument is without merit.
We have held that Booker’s prohibition against extra-verdict enhancements
is dependent on the mandatory nature of the guidelines. See Shelton, 400 F.3d at
1331 (“Booker error exists when the district court misapplies the Guidelines by
considering them as binding as opposed to advisory.”). Even if the failure to grant
a reduction under section 3B1.2(a) could be viewed as an “enhancement,” the
district court sentenced Hurtado under an advisory guidelines scheme. Because the
district court did not consider the guidelines to be mandatory, Hurtado’s sentence
does not violate Booker. See id. The district court did not err.
Hurtado also argues that the denial of a reduction for being a “minimal
participant” was clearly erroneous. We disagree. Section 3B1.2(a) provides, “If
the defendant was a minimal participant in any criminal activity, decrease by 4
levels.” U.S.S.G. § 3B1.2(a). To qualify for this reduction, the defendant must be
“plainly among the least culpable of those involved in the conduct of a group.” Id.
cmt. 4. We require the defendant to show by a preponderance of the evidence that
he played a “relatively minor role in the conduct” and that his “relative culpability
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vis-a-vis that of any other participants” was minimal. United States v. Ryan, 289
F.3d 1339, 1348-49 (11th Cir. 2002); see also De Varon, 175 F.3d at 939.
The district court did not clearly err by finding Hurtado was not a “minimal
participant” under section 3B1.2. Hurtado admitted that he helped to refuel a boat
containing nearly 2200 kilograms of cocaine, and the district court correctly
considered the amount of cocaine in determining Hurtado’s culpability. See De
Varon, 175 F.3d at 943. Further, Hurtado failed to present evidence that he was
“substantially less culpable than the average participant,” but instead argued that
some others were more culpable. The district court properly looked to all members
of the conspiracy to which Hurtado pleaded guilty and found Hurtado no less
culpable than the other crew members of the Aventurero. Because Hurtado did not
satisfy his burden of proving that he was “plainly among the least culpable of those
involved in the conduct of a group,” the district court did not clearly err in denying
the reduction.
Hurtado’s sentence is
AFFIRMED.
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