[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 7, 2006
No. 06-11243 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00332-CR-T-24-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDIN-ALFONSO MARTINEZ-ESPITIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 7, 2006)
Before ANDERSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Edin Alfonso Martinez-Espitia, a Colombian national, appeals his
concurrent 135-month sentences for conspiracy to possess and possession with
intent to distribute five or more kilograms of cocaine while aboard a vessel subject
to United States jurisdiction in violation of 46 U.S.C. §§ 1903(a), (j), and (g). On
appeal, he argues that the district court erred by denying him a minor-role
reduction and by imposing an unreasonable sentence that failed to take into
consideration the sentencing factors set forth at 18 U.S.C. § 3553(a). For the
reasons set forth more fully below, we affirm.
Martinez-Espitia pled guilty to both of the above-mentioned charges.
According to the undisputed facts in the presentence investigation report (PSI), on
August 3, 2005, the United States Coast Guard, using 30 rounds of disabling fire,
intercepted and boarded a go-fast vessel that contained over 525 kilograms of
cocaine. In Colombia, Martinez-Espitia had been a sea taxi driver and was familiar
with boat navigation. In July 2005, he was approached and offered $8,000, $4,000
to be paid up front, if he would participate in a trip transporting illegal drugs.
Martinez-Espitia was also paid 500,000 Colombian pesos for his expenses. He
agreed to participate because he needed the money to pay his mother’s medical
expenses. Moreover, he did not know any of the other three individuals on the trip.
The PSI set Martinez-Espitia’s base offense level at 38 under U.S.S.G.
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§ 2D1.1(c)(1). Martinez-Espitia then received a two-level reduction under
§ 2D1.1(b)(7) because he met the criteria for sentencing without regard to the
statutory minimum as set forth at § 5C1.2. He also received a three-level reduction
for acceptance of responsibility under §§ 3E1.1(a) and (b), for a total offense level
of 33. With no criminal history points, Martinez-Espitia’s criminal history was
category I, which at offense level 33 provided an advisory sentencing range of 135
to 168 months’ imprisonment. Prior to sentencing, Martinez-Espitia filed a motion
arguing that he should be rewarded a mitigating-role adjustment under U.S.S.G.
§ 3B1.2.1 In essence, he argued that his conduct was limited to this one shipment
and that he was not an organizer, leader, manager, or supervisor of any of the
criminal activity, but only a crew member without any knowledge of the overall
drug conspiracy.
At sentencing, Martinez-Espitia argued that there was no evidence that he
was the captain of the boat and no indication that he was aware of or participated in
any larger conspiracy. He admitted to being the driver of the boat and receiving
$4,000 for his role. The government argued that Martinez-Espitia was paid nearly
as much as the captain of the boat, most likely because he had skill as a mariner.
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Pursuant to U.S.S.G. § 2D1.1(a)(3), Martinez-Espitia’s offense level would be reduced
an additional four levels if he received a mitigating-role adjustment. See U.S.S.G.
§ 2D1.1(a)(3).
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The district court noted that it had granted a role adjustment to another
codefendant, Rafael Puertas-Moncada, who had been paid substantially less than
the others and whose role was only to occasionally steer the boat and change the
gas tanks. The district court overruled Martinez-Espitia’s objection, finding that,
although his role was less than a captain, it was not less than Puertas-Moncada’s
role and he was paid substantially more. The court then considered the § 3553(a)
factors, specifically regarding the appropriate punishment and deterrence and
protection of the community, and imposed 135 months’ imprisonment on each
count to run concurrently, the low end of the advisory guideline range.
On appeal, Martinez-Espitia first argues that the district court improperly
denied him a minor-role reduction because his role in the voyage was as a
crewman, it was his first trip, and he had no involvement in the planning. He
further argues that the district court failed to correctly apply or take into
consideration Martinez-Espitia’s relevant conduct when it denied him a minimal or
minor role reduction even though he was not an organizer, leader, manager, or
supervisor of the criminal activity.
We review “a district court's determination of whether a defendant qualifies
for an adjustment under the sentencing guidelines for clear error.” United States v.
Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002). “The defendant bears the burden of
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proving his minor role by a preponderance of the evidence.” Id. Under U.S.S.G.
§ 3B1.2(b), a defendant qualifies for a two-level reduction to his offense level if he
was a minor participant in the offense. U.S.S.G. § 3B1.2(b). The guidelines
further define a minor participant as one “who is less culpable than most other
participants, but whose role could not be described as minimal.” Id., comment.
(n.5).
As we clarified in United States v. DeVaron, 175 F.3d 930 (11th Cir. 1999)
(en banc), when determining whether a minor-role reduction is warranted, a district
court should consider (1) whether the defendant played a minor role in relation to
the relevant conduct for which he was held accountable and (2) where appropriate,
the culpability of the defendant as measured against that of other participants in the
relevant conduct. De Varon, 175 F.3d at 940, 944.
Here, it cannot be said that the district court clearly erred by denying
Escobar-Martinez a minor-role reduction. Applying the first part of DeVaron, the
relevant conduct for which he was held accountable was the weight of the bales
discarded from the go-fast boat, determined to weigh 525 kilograms. In addition,
he admitted to being a driver on the boat and had relevant skills from his job as a
sea taxi driver. Therefore, his actual and relevant conduct were the same. “[W]hen
a drug courier’s relevant conduct is limited to [his] own act of importation, a
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district court may legitimately conclude that the courier played an important or
essential role in the importation of those drugs.” DeVaron, 175 F.3d at 942-43. In
addition to transporting a large quantity of drugs, Martinez-Espitia also was
responsible for driving the boat, an essential role.
With respect to the second part of the DeVaron analysis, there is insufficient
evidence to show that Martinez-Espitia was a minor or minimal participant in
comparison to others. In determining whether a defendant was less culpable than
others, “the district court should look to other participants only to the extent that
they are identifiable or discernible from the evidence.” Id. at 944. Here, the
persons identifiable from the evidence are Martinez-Espitia and the three other
crew members of the vessel. Moreover, “where the relevant conduct attributed to a
defendant is identical to [his] actual conduct, [he] cannot prove that [he] is entitled
to a [mitigating-role] adjustment simply by pointing to some broader criminal
scheme in which [he] was a minor participant but for which [he] was not held
accountable.” Id. at 941. As the PSI indicated, Madera-Lopez was identified as
the captain, and another codefendant, Marcos Valenzela, was hired to protect the
drugs on the boat. At the sentencing hearing, it was revealed that the other
codefendant, Puertas-Moncada, occasionally steered the boat and replaced gas
tanks. Unlike Puertas-Moncada, however, Martinez-Espitia was paid nearly as
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much as the captain of the boat and his role was clearly to drive the boat. Driving
the boat is not an insubstantial role, as evidenced by the amount of money offered
to Martinez-Espitia, and he failed to provide evidence that his responsibilities
aboard the vessel were less vital to the enterprise than those of any other crew
members. Therefore, we conclude that the district court did not err by refusing to
grant a role reduction.
Next, Martinez-Espitia argues that the district court violated the Supreme
Court’s decision in Booker because it failed to consider “the numerous factors”
that could have resulted in a more fair and just sentence, such as his family,
financial background, health, educational and vocational level, and lack of criminal
history. He further argues that the district court’s imposition of a low-end
guideline sentence was unreasonable pursuant to § 3553(a).
Where a defendant challenges his overall sentence, we review for
unreasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.
2005); United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 765-66, 160
L.Ed.2d 621 (2005) (holding that appellate courts review sentences for
unreasonableness in light of the § 3553(a) factors). We have further 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
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the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005). An acknowledgment that the district court has considered a defendant’s
arguments and the § 3553(a) factors is sufficient under Booker. Id. Moreover, we
have rejected the notion that a sentence within the guidelines is per se reasonable,
although “the use of the Guidelines remains central to the sentencing process.”
United States v. Talley, 431 F.3d 784, 787 (11th Cir. 2005). We have further
stated that, “there is a range of reasonable sentences from which the district court
may choose, and 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.
Here, the district court explicitly acknowledged that it had considered the
§ 3553(a) factors, particularly those relating to an appropriate punishment,
deterrence, and protection of the community. Furthermore, the court
acknowledged and understood that Martinez-Espitia had committed the crime in
question because his mother was ill and he needed money to care for her. This
Court has acknowledged that the Guidelines promulgated by the Sentencing
Commission have been honed to take into consideration the § 3553(a) factors, and,
therefore, Martinez-Espitia’s 135-month concurrent sentences, imposed at the low-
end of the applicable guideline range, adequately reflected his personal
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characteristics and history, just punishment, and adequate deterrence. See Scott,
426 F.3d at 1330, n.5. Martinez-Espitia has not provided any evidence that his
sentence was unreasonable, and the record demonstrates that the district court took
the § 3553(a) factors and the guidelines into consideration before imposing his
sentence. We, therefore, cannot say that Martinez-Espitia’s sentence was
unreasonable.
AFFIRMED.
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