[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 27, 2007
No. 06-12341 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00009-CR-T-23-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO RAMIREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 27, 2007)
Before BIRCH, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Guillermo Ramirez (“Ramirez”) appeals his 188-month sentence for
conspiring to distribute and possess with the intent to distribute methamphetamine
from approximately August 6, 2004 through December 7, 2004, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A)(viii), and distributing and possessing with the
intent to distribute methamphetamine on August 20, 2004 and October 13, 2004, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii) and 18 U.S.C. § 2. Ramirez
argues that the district court (1) clearly erred by holding him accountable for
transactions that occurred on November 23, 2004 and December 7, 2004 in
calculating drug quantity; (2) clearly erred by not granting him a minor-role
reduction under U.S.S.G. § 3B1.2; and (3) imposed an unreasonable sentence.
Because we find no error in the district court’s rulings, and find the sentence
reasonable, we affirm.
Background
In July 2004, the United States Drug Enforcement Administration and the
Hillsborough County Sheriff’s Office (“HCSO”) began a joint investigation of the
methamphetamine trafficking activities of Francisco Vargas (“Vargas”), who is
Ramirez’s brother-in-law. Luis Argote (“Argote”), an HCSO detective, posed as a
buyer. Over the course of the next few months, Argote met with Vargas and
Ramirez on several occasions and discussed purchasing quantities of
methamphetamine. Ramirez and/or Vargas actually delivered to Argote quantities
of methamphetamine and methamphetamine ice on multiple occasions and
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discussed the possible purchase of a pound of methamphetamine ice, although that
transaction never took place. On December 7, 2004, Ramirez and Vargas were
arrested during a meeting with Argote where they agreed to procure a pound of
methamphetamine ice with $10,000 paid up front.
Discussion
1. Drug-Quantity Calculation
In calculating Ramirez’s sentence, the district court held him accountable for
43.22 grams of methamphetamine “actual” and 564.41 grams of “ice.” Ramirez
contends that he should not be held accountable for the quantity of drugs from the
November 23 transaction because he was not present at the transaction and
because, in general, he had relatively little interaction with the drug buyer, Argote,
leading up to that transaction. Ramirez also notes that Argote testified that he had
no conversations with Ramirez about the November 23 transaction. In addition,
Ramirez argues that the quantity of drugs discussed at the December 7 meeting
should not be attributed to him because he and Vargas stated that they could not
deliver the amount of drugs that Argote requested. He argues that they never
intended to provide a pound of methamphetamine ice to Argote.
We review the district court’s determination of the quantity of drugs
attributable to a defendant for clear error. United States v. Ryan, 289 F.3d 1339,
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1347-48 (11th Cir. 2002) (per curiam). The government must establish the drug
quantity by a preponderance of the evidence when a defendant objects. United
States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005)
“Section 2D1.1 of the guidelines provides that the base offense level for a
possession or a conspiracy drug offense is ordinarily calculated by determining the
quantity of drugs attributable to a defendant.” Id. Section 1B1.3(a)(1)(A) of the
Sentencing Guidelines requires a district court to consider as relevant “all acts and
omissions committed, aided, abetted, counseled, commanded, induced, procured,
or willfully caused by the defendant.” Where a criminal enterprise is taken in
concert with others, “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity” must be considered.
U.S.S.G. § 1B1.3(a)(1)(B). “In an offense involving an agreement to sell a
controlled substance, the agreed-upon quantity of the controlled substance shall be
used to determine the offense level unless the sale is completed and the amount
delivered more accurately reflects the scale of the offense.” U.S.S.G. § 2D1.1 cmt.
n.12 (emphasis added). Commentary to the Sentencing Guides also provides:
If . . . the defendant establishes that [he] did not intend to provide . . . ,
or was not reasonably capable of providing . . . , the agreed-upon
quantity of the controlled substance, the court shall exclude from the
offense level determination the amount of controlled substance that
the defendant establishes that the defendant did not intend to provide .
. . or was not reasonably capable of providing . . . .
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Id.
We can not say that the district court clearly erred in finding that the
quantity of drugs from the November 23 and December 7 transactions were
attributable to Ramirez. Ramirez had established himself as a key member of the
conspiracy by the time of the challenged transactions. There was ample evidence
that he both knew about and acted to further the November 23 and December 7
transactions. Therefore, those transactions are relevant conduct that may properly
be attributed to Ramirez. See U.S.S.G. § 1B1.3(a)(1)(A).
Furthermore, although the transcript of the district court’s comments
regarding the December 7 transaction are not entirely clear, the evidence supports
the court’s conclusion that Ramirez was accountable for the quantity of “ice” the
parties agreed to sell to Argote. The evidence indicates that Ramirez and Vargas
agreed to provide a pound of methamphetamine ice. The meeting did not result in
a drug sale because the drug buyer was not willing to pay the entire amount in
advance; not because the conspirators lacked the intent or ability to provide the
drugs. Accordingly, we affirm the district court’s findings as to drug quantity for
sentencing purposes.
2. Minor-Role Reduction
Ramirez argues that the district court should have granted him a minor-role
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reduction, under U.S.S.G. § 3B1.2, because he was not paid any money for his
involvement in the conspiracy and he did not have any proprietary interest in the
drugs. Ramirez asserts that his interest was merely in helping Vargas, who was his
brother-in-law. In addition, Ramirez asserts that Vargas was the primary actor in
all of the drug transactions.
We review a sentencing court’s determination of a minor-role reduction for
clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). The defendant bears the burden of proving his minor role by a
preponderance of the evidence. Id. at 939. Under the Guidelines, a defendant may
receive a two-level reduction in his base offense level if his role in the offense was
minor. U.S.S.G. § 3B1.2(b). A “minor participant” is someone who is “less
culpable than most other participants, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2, cmt. n.5. Commentary to § 3B1.2 provides that a
defendant, who (1) has been held accountable only for the relevant conduct in
which he personally was involved, and (2) played a limited role in the criminal
activity, is not automatically precluded from minor-role consideration. U.S.S.G.
§ 3B1.2 cmt. n.3(A).
We have held that, when determining a defendant’s entitlement to a minor-
role reduction, the district court should consider (1) the defendant’s role in the
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relevant conduct, and (2) his role as compared to that of other participants. De
Varon, 175 F.3d at 940. However, “a district court is not required to make any
specific findings other than the ultimate determination of the defendant’s role in
the offense.” Id. Regarding relevant conduct, “the district court must assess
whether the defendant is a minor or minimal participant in relation to the relevant
conduct attributed to the defendant in calculating [his] base offense level.” Id. at
941. Regarding other participants, we have held that the district court (1) “should
look to other participants only to the extent that they are identifiable or discernable
from the evidence. . . [and (2)] may consider only those participants who were
involved in the relevant conduct attributed to the defendant.” Id. at 944. However,
“[t]he fact that a defendant’s role may be less than that of other participants
engaged in the relevant conduct may not be dispositive of role in the offense, since
it is possible that none are minor or minimal participants.” Id. In addition, we
have indicated in the drug courier context that the amount of money an individual
is being paid for their participation is relevant to determining whether they had a
minor role. Id. at 945.
There was substantial evidence that Ramirez had a significant role in the
enterprise. In particular, Ramirez discussed what code words would be used when
the buyer made purchase requests; negotiated the payment that would be made for
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the drugs; received many of the buyer’s telephone calls requesting drugs; stated
that he was going to pick up the drugs from their supplier; and indicated that if his
co-conspirator did not get the drugs for the buyer, then he would get them.
Ramirez’s apparent lack of compensation for his role is overwhelmed by all of the
other evidence showing the significance of his role. Furthermore, the fact that
Ramirez was not the most central figure in the conspiracy does not make his role
minor because he was significantly involved in many critical aspects of the
conspiracy. See De Varon, 175 F.3d at 944. Therefore, based on this evidence, it
was not clear error for the district court not to grant Ramirez a minor-role
reduction.
3. Reasonableness of Sentence
Ramirez argues that his sentence is unreasonable based on his role in the
conspiracy, his personal characteristics, and a disparity between his sentence and
Vargas’s sentence. We review the district court’s sentence for reasonableness.
United States v. Winingear, 422 F.3d 1241, 1244-45 (11th Cir. 2005) (per curiam).
“[T]he party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable . . . .” United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005) (per curiam). Post-Booker, we have established a two-part process for
district courts to use in calculating sentences. Id. at 786. First, the district court
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must consult and correctly calculate the range recommended by the Sentencing
Guidelines. Id. Second, the district court must fashion a reasonable sentence by
considering the factors enumerated in 18 U.S.C. § 3553(a). Id. Though Booker
has rendered the Sentencing Guidelines merely advisory, the standards utilized to
review the application of the Guidelines remain the same. United States v.
Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005).
Included among the § 3553(a) factors are (1) the nature and circumstances
of the offense; (2) the history and characteristics of the defendant; (3) the need to
reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; (4) the need for deterrence; (5) the need to protect
the public; (6) the sentencing guidelines range. In particular, § 3553(a)(6) directs
the courts to consider “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct.”
The district court does not need to state on the record that it has considered each of
he § 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
“The weight to be accorded any given § 3553(a) factor is a matter committed
to the sound discretion of the district court.” United States v. Williams, 456 F.3d
1353, 1363 (11th Cir. 2006), pet. for cert. filed, (U.S. Oct. 14, 2006) (No. 06-
7352). A reviewing court will not substitute its judgment in weighing the relevant
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factors. Id. Moreover, we have rejected the notion that a sentence within the
guidelines is per se reasonable. Talley, 431 F.3d at 787. Even so, “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.
In arguing that his sentence is unreasonable, Ramirez points to his
demonstrated devotion to his family, work history, and lack of a criminal history.
Further, Ramirez indicates that he was not paid for his participation, that he never
meant to get involved with drugs, and has asked for forgiveness. Ramirez also
claims that there is an unwarranted sentencing disparity between his 188-month
sentence and the 87-month sentence Vargas received in light of Vargas’s central
role in the enterprise and Ramirez’s peripheral role.
The sentencing judge acknowledged many of the factors Ramirez notes and
assigned Ramirez a sentence at the bottom of the guidelines imprisonment range.
Furthermore, these factors alone do not dictate that a sentence at the bottom of the
guidelines range is out of the “range of reasonable sentences from which the
district court may choose.” See Talley, 431 F.3d at 788.
The sentences received by Ramirez and Vargas were not unwarrantedly
disparate because, while Ramirez and Vargas were convicted for their involvement
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in the same conspiracy, the record shows that Vargas pled guilty and received a
U.S.S.G. § 5K1.1 substantial assistance departure. Therefore, there was reason for
the sentencing disparity between Ramirez and his co-conspirator. Accordingly, the
sentencing disparity was not unwarranted and we affirm Ramirez’s sentence.
AFFIRMED.
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