[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 4, 2006
No. 06-10322 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20593-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER IBARRA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 4, 2006)
Before CARNES, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Javier Ibarra appeals his 70-month sentence imposed after his guilty plea to
two drug-related offense. For the reasons that follow, we affirm.
Ibarra pleaded guilty to a two-count indictment charging him with attempted
possession with the intent to distribute 1 kilogram or more of heroin and 500 grams
or more of cocaine, in violation of 21 U.S.C. §§ 841 and 846. At the change-of-
plea hearing, Ibarra admitted that he attempted to purchase 3,225.1 grams of
cocaine, and 1,099.3 grams of heroin from an undercover officer in exchange for
$11,000. Ibarra was to deliver the drugs to a third person.
The probation officer calculated the guidelines range based on a base offense
level of 32 under U.S.S.G. § 2D1.1(a)(3) and (c)(4), with a 2-level safety-valve
reduction under U.S.S.G. § 5C1.2, and a 3-level reduction for acceptance of
responsibility, U.S.S.G. § 3E1.1. The probation officer did not recommend a
reduction for role in the offense, U.S.S.G. § 3B1.2. With a total offense level of 27
and a criminal history category I, the resulting guidelines range was 70 to 87
months imprisonment. Ibarra objected to the failure to recommend a role
reduction.
At sentencing, the court overruled the objection, finding that Ibarra’s
conduct was different from a courier who comes through the airport trying to get
drugs through customs. The court noted the large quantity of drugs involved, and
determined that even though other people were involved, Ibarra’s conduct did not
warrant a reduction. The court then found that the guidelines range was reasonable
2
and that the nature of the offenses did not deserve a more lenient sentence than the
low end of the guidelines range. Accordingly, the court sentenced Ibarra to 70
months imprisonment. Ibarra now appeals, challenging the denial of the role
reduction and the reasonableness of his sentence.
I. Minor-Role Reduction
Ibarra argues that the district court erred in failing to assign a role reduction
because he (1) was involved in only one transaction, (2) did not have the authority
to make decisions or participate in the planning of the scheme, (3) did not own the
drugs or supply the money, and (4) did not contribute any knowledge or expertise
to the transaction. Ibarra further contends that the district court failed to compare
his conduct with that of the other members involved in the transaction.
We review a district court’s determination of a defendant’s role in the
offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11 th Cir.
1999) (en banc). The burden is on the defendant to show that the adjustment is
warranted. Id. at 939.
Under U.S.S.G. § 3B1.2, a district court may decrease a defendant’s offense
level by two levels if it finds the defendant was a “minor participant” in the
criminal activity. A “minor participant” is a defendant “who is less culpable than
most other participants, but whose role could not be described as minimal.”
3
U.S.S.G. § 3B1.2, comment. (n.5).
In determining whether a reduction applies, the district court should consider
the following two principles: “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. As to the first prong of the De Varon analysis, we have explained
that, “[o]nly if the defendant can establish that [ ]he played a relatively minor role
in the conduct for 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.” De Varon, 175 F.3d at 944. Further, “in
the drug courier context, . . . the amount of drugs imported is a material
consideration in assessing a defendant’s role in [his] relevant conduct . . . [and]
may be dispositive - in and of itself - in the extreme case.” Id. at 943.
With regard to the second prong of the De Varon analysis, we have
determined that a district court should look to other participants only to the extent
that they (1) “are identifiable or discernable from the evidence,” and (2) “were
involved in the relevant conduct attributed to the defendant.” Id. at 944. We have
recognized, however, that the first prong set forth in De Varon may, in many cases,
be dispositive. Id. at 945. Moreover, it is possible that no one involved is a minor
4
participant. Id.
Here, Ibarra pleaded guilty to, and was accountable for, exchanging $11,000
for large quantities of cocaine and heroin. Based on Ibarra’s relevant conduct, the
district court did not clearly err in determining that a role reduction was not
warranted. Moreover, Ibarra failed to put forth any evidence to show that his role
in the relevant conduct was minor. As Ibarra did not meet his burden, the district
court properly denied the reduction.
II. Reasonableness
Ibarra next argues that his sentence is unreasonable because the district court
failed to properly consider the factors set forth in 18 U.S.C. § 3553(a) and gave
undue weight to the guidelines. He further contends that the court did not
meaningfully consider his personal characteristics, history, likelihood of
recidivism, or the disparities between all the individuals involved in the offense.
We review sentences for reasonableness, and we do so with deference to the
district court. United States v. Talley, 431 F.3d 784, 786, 788 (11th Cir. 2006).
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), the district court must first accurately calculate the defendant’s guideline
range and second consider the § 3553(a) factors to determine a reasonable
sentence. Talley, 431 F.3d at 786; United States v. Winingear, 422 F.3d 1241,
5
1246 (11th Cir. 2005). Those factors include, inter alia, (1) the nature and
circumstances of the offense, (2) the history and characteristics of the defendant,
(3) the need for the sentence imposed to reflect the seriousness of the offense, to
afford adequate deterrence, and to protect the public from future crimes of the
defendant, and (4) the need to avoid unwarranted sentencing disparities among
defendants with similar histories who have committed similar conduct. 18 U.S.C.
§ 3553(a). The district court is not required to state on the record that it explicitly
considered each of the factors. United States v. Scott, 426 F.3d 1324, 1329 (11th
Cir. 2005).
Here, the record reflects that the court considered the § 3553(a) factors in
addition to the guidelines range to determine that a sentence below the guideline
range was not sufficient punishment. Because the district court correctly
calculated Ibarra’s applicable guideline range, sentenced him at the low-end of that
range and significantly below the statutory maximum, and considered the
§ 3553(a) factors, we conclude that Ibarra’s sentence is reasonable. Accordingly,
we AFFIRM Ibarra’s sentence.
6