[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14576 MARCH 30, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00238-CR-T-17TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REINALDO ROJAS HINESTROZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 30, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Reinaldo Rojas Hinestroza appeals his 135-month sentence for conspiracy to
possess with intent to distribute and possession with intent to distribute five
kilograms or more of cocaine on board a vessel subject to United States
jurisdiction, in violation of 46 U.S.C. app. §1903(a), (g), and (j). The sentence was
imposed after Hinestroza pled guilty to the indictment, and after a Presentence
Investigation Report reflected that he was arrested by the United States Coast
Guard on a fishing vessel carrying 4.6 tons of cocaine. Hinestroza was a member
of a crew of eight. On appeal, Hinestroza argues that he was a minor participant in
the crime, and, therefore, he should have been granted a minor-role reduction
pursuant to United States Sentencing Guidelines Manual § 3B1.2. He also argues
that, because of the minor role that he played in the offense, his base offense level
should have been capped at 30, pursuant to U.S.S.G. § 2D1.1(a)(3). He further
appears to argue that based on the factors set forth in 18 U.S.C. § 3553(a), the
district court erred by failing to depart downward from the guideline range. The
government responds that Hinestroza failed to raise these issues before the district
court and is therefore precluded from raising them on appeal; and even if he could,
they have no merit.
A defendant who fails to object to the denial of a § 3B1.2 minor-role
reduction is precluded from raising the issue on appeal. See United States v.
Asseff, 917 F.2d 502, 506 n.4 (11th Cir. 1990) (per curiam). “The proponent of the
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downward adjustment . . . always bears the burden of proving a mitigating role in
the offense by a preponderance of the evidence.” United States v. DeVaron, 175
F.3d 930, 939 (11th Cir. 1999) (en banc).
At the sentencing hearing, Hinestroza stated that “he is a very minor player,
a pawn in a very large game in his country . . . I believe that this Court can take it
into consideration in creating a reasonable sentence.” We find that this statement,
without more, is insufficient to raise the minor-role issue in the district court, and
therefore he is precluded from raising this issue on appeal. Even if this elliptic
argument preserves a § 3B1.2 issue for appeal, it is axiomatic that such a brief and
conclusory argument fails to meet his burden required by DeVaron.
Additionally, Hinestroza fails to argue in his initial brief that his sentence is
unreasonable under Booker, and therefore we deem the issue abandoned. See
United States v. Britt, 437 F.3d 1103, 1105 (11th Cir. 2006) (per curiam) (holding
that we need not address issues not raised in an initial brief).
To the extent that Hinestroza is appealing the district court’s refusal to
sentence him below the guidelines range, we lack jurisdiction over such an appeal.
18 U.S.C. § 3742(a) and (f); United States v. Wright, 895 F.2d 718, 719-20 (11th
Cir. 1990) (per curiam) (this Court may not review a sentence within the correctly
determined guidelines range “unless the sentence was imposed in violation of law,
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was based on a misapplication of the guidelines, or was plainly unreasonable and
imposed for an offense for which there was no applicable guideline.”).
Accordingly, we affirm Hinestroza’s sentence.
AFFIRMED.
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