[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 26, 2006
No. 05-14792 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00046-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVARO CORTES PINZON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 26, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Alvaro Cortes Pinzon appeals his 135-month sentence after he
pled guilty to one count of conspiracy to possess with intent to distribute five
kilograms or more of cocaine while on board a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. App. § 1903(a), (g), and (j), and 21
U.S.C. § 960(b)(1)(B)(ii), and one count of possession with intent to distribute
five kilograms or more of cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. App. § 1903(a) and (g),
and 21 U.S.C. § 960(b)(1)(B)(ii). On appeal, Cortes Pinzon argues that the district
court erred (1) in denying him a mitigating-role adjustment, pursuant to U.S.S.G.
§ 3B1.2, and (2) by imposing an unreasonable sentence, one greater than those
received by similarly situated defendants, in violation of United States v. Booker,
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
I. U.S.S.G. § 3B1.2 mitigating-role adjustment
“Post-Booker, we continue to review the district court’s application of the
Guidelines just as we did pre-Booker.” United States v. Ellis, 419 F.3d 1189, 1192
(11th Cir. 2005). We require the district court “to calculate correctly the
sentencing range prescribed by the Guidelines.” United States v. Crawford, 407
F.3d 1174, 1178 (11th Cir. 2005). “This Court has 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
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(11th Cir. 1999) (en banc). “So long as the basis of the trial court’s decision is
supported by the record and does not involve a misapplication of a rule of law,
. . . it will be rare for an appellate court to conclude that the sentencing court’s
determination is clearly erroneous.” Id. at 945.
The Sentencing Guidelines permit a court to decrease a defendant’s offense
level by two points 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 could not be described as
minimal.” U.S.S.G. § 3B1.2, comment. (n.5). The Sentencing Guidelines also
permit a court to decrease a defendant’s offense level by four points if it finds that
the defendant was a “minimal participant” in the criminal activity. U.S.S.G.
§ 3B1.2(a). A defendant is a minimal participant if he is “plainly among the least
culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2,
comment. (n.4).
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. Regarding the
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first prong, we have stated that “the district court must measure the defendant’s
role against the relevant conduct for which [he] has been held accountable.” Id.
“In other words, the district court must assess whether the defendant is a minor or
minimal participant in relation to the relevant conduct attributed to the defendant in
calculating [his] base offense level.” Id. at 941. Under the first prong of the De
Varon test, we explained that:
[i]n the drug courier context, examples of some relevant factual
considerations include: amount of drugs, fair market value of drugs,
amount of money to be paid to the courier, equity interest in the drugs,
role in planning the criminal scheme, and role in the distribution. This
is not an exhaustive list, nor does it suggest that any one factor is
more important than another.
Id. at 945. Nonetheless, we noted that “because the amount of drugs in a courier’s
possession – whether very large or very small – may be the best indication of the
magnitude of the courier’s participation in the criminal enterprise, we do not
foreclose the possibility that amount of drugs may be dispositive – in and of itself –
in the extreme case.” Id. at 943.
As for the second prong, we have stated that “the district court may also
measure the defendant’s culpability in comparison to that of other participants in
the relevant conduct.” Id. at 944. In assessing a defendant’s relevant culpability,
we have concluded that:
[f]irst, the district court should look to other participants only to the
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extent that they are identifiable or discernable from the evidence. This
is a fact-intensive inquiry. Second, the district court may consider
only those participants who were involved in the relevant conduct
attributed to the defendant. The conduct of participants in any larger
criminal conspiracy is irrelevant. . . . Simply put, a defendant is not
automatically entitled to a minor role adjustment merely because [he]
was somewhat less culpable than the other discernable participants.
Rather, the district court must determine that the defendant was less
culpable than most other participants in [his] relevant conduct.
Id. at 944.
We conclude from the record that the district court did not clearly err when
it denied Cortes Pinzon a mitigating-role reduction because (1) he was held
accountable only for the quantity of cocaine related to his role in the offense; (2)
the court found his role, which included monitoring the vessel’s plug and throwing
bales off the vessel before apprehension, to be significant and critical to the
criminal enterprise; and (3) he failed to produce any evidence in support of his
mitigating role. See De Varon, 175 F.3d at 941, 943. Accordingly, we affirm as to
this issue.
II. Booker
We review sentences imposed under the post-Booker advisory Guideline
scheme for reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th
Cir. 2005); Booker, 543 U.S. at 260-63, 125 S. Ct. at 765-66 (holding that appellate
court review sentences for unreasonableness in light of the § 3553(a) factors).
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Following the Booker decision, we have held that the district court must first
correctly calculate the defendant’s advisory Guideline range, and then, using the
18 U.S.C. § 3553(a) sentencing factors, the court can impose a more severe or
more lenient sentence as long as it is reasonable. Crawford, 407 F.3d at1179.
Our review for reasonableness is deferential. United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). “We must evaluate whether the sentence imposed
by the district court fails to achieve the purposes of sentencing as stated in section
3553(a). In our evaluation of a sentence for reasonableness, we recognize that
there is a range of reasonable sentences from which the district court may choose.”
Id. The § 3553(a) 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. at 786; see also 18 U.S.C. § 3553(a). We also have noted that “when the
district court imposes a sentence within the advisory Guidelines range, we
ordinarily will expect that choice to be a reasonable one.” Id. at 788.
In United States v. Scott, we held that a district court’s statement that it had
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considered the § 3553(a) factors alone is sufficient in post-Booker sentences to
indicate that it considered the factors. 426 F.3d 1324, 1329-30 (11th Cir. 2005).
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.” Id. at 1329. We have concluded that the
defendant’s sentence was reasonable because the district court accurately
calculated the Guideline range and the defendant’s sentence at the low end of the
range reflected the court’s consideration of his evidence in mitigation. Id. at 1330.
In the instant case, we conclude from the record that the district court
imposed a reasonable sentence. First, the district court correctly calculated the
Guideline range. See Crawford, 407 F.3d at 1178. Second, the district court, in
sentencing Cortes Pinzon to a low-end Guideline sentence took into consideration
the statutory 18 U.S.C. § 3553(a) factors. Although the district court did not
explicitly discuss each statutory factor, it was not required to do so. See Scott, 426
F.3d at 1329. Third, the district court applied the Guidelines in an advisory
fashion. Because, based on our review of the record, Cortes Pinzon’s sentence was
reasonable, we affirm as to this issue.
Conclusion
Based on our review of the record and the parties’ briefs, we discern no
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reversible error. Accordingly, we affirm Cortes Pinzon’s sentence.
AFFIRMED.
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