United States v. Carlos Roberto Bonilla-Nunez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 06, 2006
No. 06-10857 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00362-CR-T-24-EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ROBERTO BONILLA-NUNEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(September 6, 2006)

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

PER CURIAM:

Carlos Roberto Bonilla-Nunez appeals his 135-month sentence after he pled
guilty without a plea agreement to drug trafficking offenses. He was a member of

a four-member crew caught on a fishing vessel with 3,900 kilograms of cocaine

hidden in a secret compartment. He asks that we vacate his sentence and remand

the case for re-sentencing because the district court erred in declining to apply a

minor-role reduction to his base offense level to reduce his sentence.

United States Sentencing Guidelines § 3B1.2(b) permits the district court to

decrease a defendant’s base offense level if it finds that the defendant was less

culpable than his co-defendant. To apply a mitigating role reduction, the district

court must determine that the defendant played a relatively minor role in the

relevant conduct for which he was held accountable. United States v. DeVaron,

175 F.3d 930, 944 (11th Cir. 1999) (en banc). In making this determination, the

court may consider, for example, the amount of drugs involved, the fair market

value of the drugs, the amount of money to be paid to the courier, the courier’s

equity interest in the drugs, the courier’s role in planning the criminal scheme, and

the courier’s role in distributing the cocaine. Id. at 945. The amount of drugs

involved may be dispositive in the extreme situation. Id. at 943. Also, the district

court may compare the defendant’s culpability to that of the majority of the other

participants who are identifiable from the evidence and who participate in the

defendant’s relevant conduct. Id. at 944.

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 We review the district court’s finding concerning the defendant’s role in the

offense for clear error. Id. at 937. The defendant bears the burden of proving that

he played a minor role by a preponderance of the evidence. United States v. Boyd,

291 F.3d 1274, 1277 (11th Cir. 2002).

Bonilla Nunez argues that he was entitled to a minor-role reduction because

he was “nothing more than a crewman” or “pawn” in a venture over which he “had

no control.” Although he recognized that he was “just like the other crew

members,” he argued that he was “not the captain” and that his participation in the

conspiracy was less than that of other uncharged individuals.

We find no error in the district court’s conclusion that Bonilla-Nunez failed

to carry his burden under § 3B1.2(b). Bonilla-Nunez was held accountable at

sentencing for loading and secreting 3,900 kilograms of cocaine. This was a

significant amount of cocaine that was discovered on the vessel on which he was

arrested. Likewise, he admitted to loading and secreting the cocaine. Furthermore,

the only participants in the trafficking conspiracy, besides Bonilla-Nunez, who are

identifiable from the record are the three other crew members who were indicted.

With respect to these relevant participants, each participated in loading and

secreting the 3,900 kilograms of cocaine, like Bonilla-Nunez. The only participant

whose role is distinguishable is the captain. However, the roles of the majority of

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the participants, including that of Bonilla-Nunez are indistinguishable. Therefore,

Bonilla-Nunez has failed to prove by a preponderance of the evidence that he

deserved a minor-role reduction, and the district court did not clearly err in

declining to apply a minor-role reduction.

Accordingly, we affirm Bonilla-Nunez’s sentence.

AFFIRMED.

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