[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 2, 2007
No. 06-13672 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00517-CR-T-17EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO HOWARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 2, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Alejandro Howard appeals the concurrent 135-month sentences he received
following pleas of guilty to conspiracy to possess with intent to distribute and
possession with intent to distribute cocaine while aboard a vessel subject to the
jurisdiction of the United States.1 He asks that we vacate his sentences and remand
the case for resentencing on the grounds that (1) the district court, in calculating his
sentencing range, misapplied United States Sentencing Guideline § 3B1.2 by
improperly denying him a mitigating-role reduction; and (2) his sentence was
unreasonable because the district court did not adequately consider the relevant 18
U.S.C. § 3553(a) factors.
I.
Howard was one of four crew members on board a vessel that was caught by
the United States Coast Guard south of Jamaica with 1,832 kilograms of cocaine.
Howard claims (1) that he was simply a crew member; (2) he had no ownership
interest in this substantial amount of drugs he was transporting, and he did not
organize the venture; (3) there were more individuals than just the crew that
participated in the drug smuggling; and (4) there was a captain on the vessel that
was more culpable than him. He contends that these facts demonstrate that he was
merely a pawn in the transportation of the drugs and, thus, that he should be
granted a mitigating-role reduction.
1
46 App. U.S.C., §§ 1903(a), (g), (j); 21 U.S.C. § 960(b)(1)(B)(ii).
2
We review a district court’s determination of a defendant’s entitlement to a
role reduction for clear error. United States v. Rodriguez De Varon, 175 F.3d 930,
937 (11th Cir. 1999). The defendant bears the burden of proving, by a
preponderance of the evidence, that he is entitled to a mitigating-role reduction. Id.
at 939.
To determine whether a minor-role reduction applies, a district court first
should measure the defendant’s role against the relevant conduct for which the
defendant has been held accountable. Id. at 940-41. This requires the district court
to assess all probative facts of the defendant’s role in his relevant conduct. Id. at
943. In cases where the defendant is a drug courier, relevant factual considerations
include, but are not limited to: (1) the amount of drugs; (2) the fair market value of
the drugs; (3) the amount to be paid to the courier; (4) the defendant’s equity
interest in the drugs; (5) the defendant’s role in planning the criminal scheme; and
(6) the defendant’s role in distribution. Id. at 945. The amount of drugs, in
particular, is a material consideration in assessing the defendant’s role, and “may
be dispositive–in and of itself–in the extreme case.” Id. at 943. Further, “when 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.
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We agree with the district court that Howard failed to carry his burden under
§ 3B1.2. It is clear that his role in the offense was identical to the conduct for
which he was held accountable, and he did not show that he was substantially less
capable than other participants involved in the conspiracy. Howard was held
accountable only for the 1,832 kilograms of cocaine that he helped to transport, a
substantial amount of drugs. His role was not minor in the relevant conduct of
possession and conspiracy to possess with intent to distribute five kilograms of
cocaine. Although there was a captain on board who may have played a more
significant role, Howard brought forth no evidence at the sentencing hearing that
the other crew members on board were more involved in the venture than he was.
II.
Howard next argues that his 135-month sentence was unreasonable because
the district court did not adequately consider the relevant 18 U.S.C. § 3553(a)
factors, as required by the Supreme Court’s decision in United States v. Booker,
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). He argues that he
presented the district court with § 3553(a) factors, which the district court
summarily addressed by stating that the sentence imposed was reasonable. He
argues that the district court’s failure either to discuss the factors that he presented
or to elaborate on the § 3553(a) factors it considered suggested that the district
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court arbitrarily rejected the factors or did not adequately consider them. He
claims that the district court only considered the guidelines in fashioning his
sentence.
Generally, pursuant to the Supreme Court’s instructions in Booker, we
review a district court’s sentence, imposed after consulting the guidelines and
considering the factors set forth at § 3553(a), for reasonableness.2 United States v.
Williams, 435 F.3d 1350, 1353 (11th Cir. 2006). In sentencing a defendant, the
factors that a district court should consider include: (1) the nature and
circumstances of the offense; (2) the history and characteristics of the defendant;
(3) the need for the sentence to reflect the seriousness of the offense, promote
respect for the law, afford adequate deterrence, protect the public, and provide
needed correctional treatment; (4) the applicable guideline range; (5) the pertinent
Sentencing Commission policy statements; and (6) the need to avoid unwarranted
sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7). A district court need not
explicitly consider every single § 3553(a) factor in order for the sentence to be
reasonable. See United States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005). In
fact, “an acknowledgment by the district court that it has considered the
2
The government argues that, because Howard did not object to the district court’s
failure to consider adequately the § 3553(a) factors below, we should review his reasonableness
argument for plain error. Because Howard’s argument fails under the more deferential
reasonableness standard, we need not address this issue.
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defendant's arguments and the factors in section 3553(a) is sufficient under
Booker.” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Further,
although there is no per se presumption that a sentence within the guideline range
is reasonable, “[r]eview for reasonableness is deferential . . . 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 787-88.
The record reflects that the district court adequately and properly considered
the § 3533(a) factors and, thus, complied with Booker. Before imposing the
sentence, the district court heard Howard’s arguments in mitigation and then
sentenced him to 135 months’ imprisonment, which was at the low end of his
guideline range. The district court explicitly acknowledged that it had considered
the advisory guidelines and the § 3553(a) factors in determining that the sentence
was sufficient but not greater than necessary to comply with the statutory purposes
of sentencing. And as we stated in Scott, 426 F.3d at 1330, the district court was
not required to discuss each of the § 3553(a) factors.
We find that (1) the district court did not clearly err in denying Howard’s
request for a § 3B1.2 mitigating-role reduction, and (2) the imposition of Howard’s
sentence reflected consideration of the § 3553(a) factors, and Howard’s sentence
was not unreasonable. Accordingly, we affirm.
AFFIRMED.
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