[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
------------------------------------------- March 2, 2006
No. 04-15278 THOMAS K. KAHN
Non-Argument Calendar CLERK
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D.C. Docket No. 04-00141-CR-T-24-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VALDEMAR VALLECILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 2, 2006)
Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Valdemar Valecillo appeals his 135-month concurrent
sentences, imposed pursuant to his guilty plea, for possession with intent to
distribute 5 kilograms or more of cocaine while aboard a vessel subject to United
States jurisdiction, in violation of 46 U.S.C. App. § 1903(a), (g), and 21 U.S.C. §
960(b)(1)(B)(ii), and conspiracy to possess with intent to distribute 5 kilograms or
more of cocaine while aboard a vessel subject to U.S. jurisdiction, in violation of
46 U.S.C. § 1903(a), (g), and (j), and 21 U.S.C. § 960(b)(1)(B)(ii). Reversible
error exists in part under United States v. Booker, 125 S.Ct. 738 (2005).
Defendant argues that the district court erred by failing to grant him an
offense level reduction for his minimal or minor role in the offenses, pursuant to
U.S.S.G. § 3B1.2. He contends (1) that no evidence showed that he owned, sold,
or distributed drugs in exchange for money, (2) that he only was a crewman on the
boat containing the cocaine, and (3) that his role was much less than the major
drug owners and transporters targeted in “Operation Panama Express,” a
government initiative against drugs imported from Colombia.
We review for clear error the district court’s determinations about a
defendant’s role in an offense. See United States v. Ryan, 289 F.3d 1339, 1348
(11th Cir. 2002). The defendant bears the burden of establishing a mitigating role
in the offense by a preponderance of the evidence. Id.
2
Sentencing courts should consider two principles when determining the
defendant’s role in the offense: “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.” United States v.
DeVaron, 175 F.3d 930, 940 (11th Cir. 1999) (en banc).
The district court committed no clear error in determining that Defendant’s
role in the offense was not minor or minimal. Defendant’s sentence was based
only on the relevant conduct for which he was held accountable at sentencing.
The relevant conduct attributed to Defendant included that he was one of four
persons hired to smuggle 1,000 kilograms of cocaine from Colombia to the United
States on a “go-fast” boat. Defendant stipulated that his role included driving the
boat and that he was to be paid about $20,000. Defendant offered no evidence that
his participation as a crew member was minor in relation to the attempted cocaine
smuggling. And Defendant offered no evidence that he was less culpable than the
other three crewmembers of the vessel. Further, the district court indicated that
Defendant was being sentenced for the conspiracy to smuggle and distribute only
the 1,000 kilograms of cocaine on the go-fast boat. Thus, facts about a larger
conspiracy and other persons targeted in Operation Panama Express are not
relevant to whether Defendant was a minor participant in the charged conspiracy.
3
See DeVaron, 175 F.3d at 944. We see no error in the district court’s refusal to
apply a mitigating role reduction.
Defendant also argues that the district court committed statutory Booker
error by applying the Sentencing Guidelines in a mandatory, as opposed to an
advisory, fashion. We agree.
Defendant timely raised an objection based on Blakely v. Washington, 124
S.Ct. 2531 (2004). Thus, we review his Booker claim for harmless error. See
United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). The
government concedes that the district court committed a statutory Booker error
when it sentenced Defendant under a mandatory guideline system. See United
States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005) (setting forth that two
kinds of sentencing errors exist based on Booker: constitutional errors and
statutory errors).1 The government then bears the burden of showing that the
statutory error was harmless. See Mathenia, 409 F.3d at 1292. A statutory Booker
error is harmless only if the government shows that the error did not affect the
sentence, or had only a very slight effect. Id.
The government not only concedes that a statutory Booker error occurred,
but concedes it cannot show that this error had only a slight effect on Defendant’s
1
This case does not involve a Booker constitutional error.
4
sentence. The district court expressly stated that it was sentencing Defendant
pursuant to the Guidelines. Moreover, the district court made no statement that it
would have imposed the same sentence regardless of whether the guidelines were
advisory or mandatory. See Mathenia, 409 F.3d at 1292 (concluding that statutory
Booker error was harmless where district court announced it would have imposed
same sentence if guidelines were unconstitutional as applied mandatorily). Also,
the district court sentenced Defendant at the bottom of the guideline range.
In sum, although the district court did not err in refusing to apply an offense
level reduction under § 3B1.2, Defendant must be resentenced under an advisory
guidelines system in accordance with Booker.
VACATED AND REMANDED.
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