[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 26, 2007
No. 06-11414 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00352-CR-T-23-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ENRIQUE SINCLAIR CHRISTOPHER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 26, 2007)
Before TJOFLAT, ANDERSON and CARNES, Circuit Judges.
PER CURIAM:
Miguel Enrique Sinclair Christopher appeals the 135-month sentence
imposed following his conviction for conspiracy to possess with intent to distribute
cocaine while aboard a vessel subject to United States jurisdiction, 46 App. U.S.C.
§§ 1903(a), (g), (j), 21 U.S.C. § 960(b)(1)(B)(ii), and possession with intent to
distribute cocaine while aboard a vessel subject to United States jurisdiction, 46
App. U.S.C. §§ 1903(a), (g), 18 U.S.C. § 2, 21 U.S.C. § 960(b)(1)(B)(ii).
According to the presentence investigation report, officers of the United
States Coast Guard arrested Christopher on a Colombian fishing vessel that was
transporting over three tons of cocaine.
Christopher argues that he was entitled to a mitigating role reduction.
Christopher asserts that he is less culpable than most other participants because this
was his first drug trafficking trip, he was not involved in planning or funding the
trip, did not know to whom the drugs were going, had no ownership interest, and
was merely a crewman doing what he was told to do.
We review for clear error a district court’s factual determination of a
defendant’s role in the offense. United States v. De Varon, 175 F.3d 930, 937
(11th Cir. 1999) (en banc).
A defendant who is “plainly among the least culpable of those involved in
the conduct of a group,” and who has a “lack of knowledge or understanding of the
scope and structure of the enterprise and of the activities of others” is entitled to a
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four-level reduction for his minimal role. U.S.S.G. § 3B1.2(a), comment. (n.4). A
defendant “who is less culpable than most other participants, but whose role could
not be described as minimal” is entitled to a two-level reduction for his minor role.
U.S.S.G. § 3B1.2(b), comment. (n.5). The defendant bears the burden of proving a
mitigating role in the offense by a preponderance of the evidence. De Varon, 175
F.3d at 939.
We have held that a district court’s determination of the defendant’s role in
the offense should be guided by two principles. Id. at 940-45. First, “the district
court must measure the defendant's role against the relevant conduct for which [he]
has been held accountable.” Id. at 940. “Where the relevant conduct attributed to
a defendant is identical to [his] actual conduct, [he] cannot prove that [he] is
entitled to a minor 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. For example, “[w]hen a drug courier's relevant conduct
is limited to [his] own act of importation, a district court may legitimately conclude
that the courier played an important or essential role in the importation of those
drugs.” Id. at 942-43.
Second, the district court may compare the defendant’s conduct to that of the
other participants in the conduct for which the defendant was held accountable. Id.
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at 944. But even if a defendant can show that his role was less than that of other
participants, this “may not be dispositive of role in the offense, since it is possible
that none are minor or minimal participants.” Id. The final decision on the
defendant’s role in the offense “falls within the sound discretion of the trial court.”
Id. at 945. As a result, “it will be rare for an appellate court to conclude that the
sentencing court’s determination is clearly erroneous.” Id.
The record supports the district court’s findings that Christopher was not
entitled to a minor or minimal role reduction. First, the conduct attributed to
Christopher was identical to his actual conduct. Second, the district court did not
clearly err in determining that Christopher was not substantially less culpable than
the other crew members on the fishing vessel. While Christopher asserts that his
role was less than that of others on the vessel, the evidence indicates that he had
some role in transporting and concealing an extraordinarily large quantity of
cocaine. The district court was entitled to conclude that Christopher’s participation
in this larger enterprise precluded a minor or minimal role adjustment. Even if he
was less culpable than other crew members, this did not prevent the district court
from finding that Christopher’s role was not minor or minimal. See De Varon, 175
F.3d at 944. The district court therefore did not clearly err in denying Christopher
a mitigating role reduction.
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Christopher further argues that his sentence was procedurally unreasonable
because the district court failed to consider any of the 18 U.S.C. § 3553(a) factors
other than the guidelines range. He asserts that the district court should have
considered his family and financial background, education and vocational level,
and lack of criminal history, but instead sentenced him to the low end of the
guideline range without any other consideration.
“After the district court has accurately calculated the Guideline range,” we
typically review the final sentence for reasonableness. United States v. Winingear,
422 F.3d 1241, 1244 (11th Cir. 2005). The government contends that this appeal
should be reviewed for plain error because Christopher failed to object in the
district court that his sentence was unreasonable. We need not decide the issue of
which standard to apply because, as demonstrated below, his sentence was
reasonable, and thus, was proper under either standard of review.
The factors that act as a guide in determining whether a sentence was
reasonable are found in 18 U.S.C. § 3553(a). Id. at 1246. “These factors include
the available sentences, the applicable Guideline range, the nature and
circumstances of the offense, and the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, provide just punishment for
the offense, and provide the defendant with needed medical care.” Id. Another
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factor is “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). A sentence within the guidelines range is neither per se reasonable,
United States v. Talley, 431 F.3d 784, 786-88 (11th Cir. 2005), nor entitled to a
presumption of reasonableness, United States v. Hunt, 459 F.3d 1180, 1185 (11th
Cir. 2006).
“After Booker,1 a sentence may be reviewed for procedural or substantive
unreasonableness.” Hunt, 459 F.3d at 1182 n.3 (footnote added). Christopher
argues only that the sentence was procedurally unreasonable because the district
court did not explicitly mention each § 3553(a) factor. “A sentence may be
unreasonable if it is the product of a procedure that does not follow Booker’s
requirements, regardless of the actual sentence.” Id.
Christopher’s argument is without merit. “[W]hen the district court
considers the factors of § 3553(a), it need not discuss each of them . . . an
acknowledgment by the district court that it has considered the defendant’s
argument and the factors in § 3553(a) is sufficient.” Talley, 431 F.3d at 786. The
transcript of Christopher’s sentencing hearing reflects that the district court
properly considered the § 3553(a) factors. The district court informed Christopher
1
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
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that it would consider the factors, solicited his position as to what might lead the
court to impose a lesser sentence, and, after pronouncing sentence, stated that
upon consideration of the factors, the sentence was reasonable and not greater than
necessary. No recitation was required that the particular factual matters raised by
Christopher had been considered. Talley, 431 F.3d at 786. There was no
procedural fault in the sentencing.
Upon careful consideration of the briefs of the parties, and thorough review
of the record, we find no reversible error. Accordingly, Christopher’s sentence is
AFFIRMED.
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