[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 21, 2007
No. 06-14925 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00025-CR-T-26-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLDEMAR EDMUNDO ROLDAN-SAMUDIO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 21, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Oldemar Edmundo Roldan-Samudio appeals his two concurrent 135-month
sentences for possession with intent to distribute five kilograms or more of cocaine
while aboard a vessel subject to the jurisdiction of the United States, in violation of
46 U.S.C. app. § 1903(a), (g), and 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to
possess with intent to distribute five kilograms or more of cocaine while aboard a
vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. app.
§ 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii). On appeal, Roldan-Samudio
argues that the district court clearly erred in denying a minor-role reduction and
that his sentence is unreasonable. For the reasons set forth more fully below, we
affirm.
Roldan-Samudio and seven codefendants were indicted on the above-
mentioned charges, to which Roldan-Samudio pled guilty. According to the
presentence investigation report (“PSI”), on January 12, 2006, the U.S. Coast
Guard obtained permission to board and search a Panamanian commercial
freighter, ultimately finding 50 bales of cocaine, which weighed 1,134 kilograms.
Roldan-Samudio was identified as the second engineer, and the other seven
codefendants held the following positions: captain, chief engineer, first and second
officers, deck seaman, machinist, and cook. The freighter’s route took it from
Spain, to Trinidad, to the Dominican Republic, to Guyana, and to Haiti. In the
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early morning hours of January 12, 2006, the entire crew participated in the
transfer of the 50 bales of cocaine from a go-fast vessel off the coast of Venezuela.
Roldan-Samudio was held accountable for 1,134 kilograms of cocaine at
sentencing.
Roldan-Samudio argued that he should receive a minor-role adjustment
based on the circumstances surrounding his participation in the voyage, contending
that he did not learn of the illegal purpose of the voyage until the ship left port and
was threatened when he tried to leave the ship. Roldan-Samudio further argued
that this was his first voyage and he was there as a trainee, he did not have any real
leadership role, and he did nothing of any great relevance concerning the drug
voyage. The district court overruled Roldan-Samudio’s objection, relying on
Roldan-Samudio’s accountability for 1,134 kilograms of cocaine and the lack of
evidence that Roldan-Samudio was less culpable than any of the other crew
members. His resulting Guideline range was 135-168 months’ imprisonment.
After hearing arguments concerning a reasonable sentence, the district court
found that Roldan-Samudio embarked on a major drug venture and that nothing in
the statutory factors warranted a variance from the advisory Guidelines. Noting
that it gave an enhancement to the captain and downward departures based on the
government’s motion to two other defendants, the court found no reason to treat
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Roldan-Samudio differently than any of the remaining defendants in this case who
had received 135-month sentences. Accordingly, the court imposed a 135-month
sentence.
I. Mitigating-role reduction
On appeal, Roldan-Samudio asserts that the district court clearly erred in
denying a minor-role reduction because he was tricked into going on the voyage
and lacked a leadership role or a role in planning the criminal scheme.
“[A] district court’s determination of a defendant’s role in the offense is a
finding of fact to be reviewed only for clear error.” United States v. De Varon, 175
F.3d 930, 937 (11th Cir. 1999) (en banc). The Guidelines provide for a two-level
decrease if the defendant was a minor participant in any criminal activity.
U.S.S.G. § 3B1.2(b). Section 3B1.2 permits an adjustment to the Guideline range
for a defendant who is substantially less culpable than the average participant. Id.
§ 3B1.2, comment. (n.3). A defendant is a minor participant if he is less culpable
than most other participants, but his role cannot be described as minimal. Id.
§ 3B1.2, comment. (n.5). “The defendant bears the burden of proving his minor
role by a preponderance of the evidence.” United States v. Boyd, 291 F.3d 1274,
1277 (11th Cir. 2002).
In determining a defendant’s mitigating role in the offense, the district court
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first “must measure the defendant’s role against the relevant conduct for which [he]
was held accountable at sentencing” and, second, “may also measure the
defendant’s role against the other participants, to the extent that they are
discernable, in that relevant conduct.” De Varon, 175 F.3d at 945. As to the
second prong, “the district court must determine that the defendant was less
culpable than most other participants in [his] relevant conduct.” Id. at 944.
Moreover, relative culpability is not necessarily dispositive, as none of the
participants may have played a minor or minimal role. Id. Where a drug courier’s
relevant conduct is limited to his own criminal act, a district court may legitimately
conclude that the courier played an important or essential role in that crime. See
id. at 942-43. We have provided a non-exhaustive list of examples of relevant
factual considerations informing the ultimate finding of the defendant’s role in the
offense: the “amount of drugs, fair market value of drugs, amount of money to be
paid to the courier, equity interest in the drugs, role in planning the criminal
scheme, and role in the distribution.” Id. at 945.
Roldan-Samudio’s actual and relevant conduct were one and the same. He
was held accountable only for the 1,134 kilograms of cocaine aboard the vessel,
which he and the rest of the crew transferred from the go-fast boat onto the ship.
Despite his claim that he was tricked into going on the voyage and lacked a
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planning or leadership role, Roldan-Samudio provided no evidence showing that
his responsibilities aboard the vessel were less important to the enterprise than
those of the other crew members. Thus, Roldan-Samudio failed to show that he
was less culpable than most other participants. U.S.S.G. § 3B1.2, comment. (n.5);
De Varon, 175 F.3d at 944. Accordingly, we hold that the district court did not
clearly err in denying a minor-role adjustment.
II. Reasonableness of Sentence
Roldan-Samudio contends that his sentence is unreasonable, relying on his
positive history and characteristics, the circumstances surrounding his participation
in the voyage, and the shorter sentences received by two of his codefendants,
including the Chief Engineer, who outranked him.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
Our review for reasonableness is deferential. United States v. Thomas, 446 F.3d
1348, 1351 (11th Cir. 2006). We consider the factors outlined in 18 U.S.C.
§ 3553(a) and the district court’s reasons for imposing the particular sentence.
United States v. Williams, 456 F.3d 1353, 1360-61 (11th Cir. 2006), pet. for cert.
filed, (U.S. Oct. 19, 2006) (No. 06-7352). The § 3553(a) factors take into account:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
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of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). “[T]here is a range of
reasonable sentences from which the district court may choose” and the burden of
establishing that the sentence is unreasonable in light of the record and the
§ 3553(a) factors lies with the party challenging the sentence. Id. at 788. “When
reviewing the length of a sentence for reasonableness, we will remand for
resentencing if we are left with the definite and firm conviction that the district
court committed a clear error of judgment in weighing the § 3553(a) factors by
arriving at a sentence that lies outside the range of reasonable sentences dictated by
the facts of the case.” Williams, 456 F.3d at 1363.
The district court noted Roldan-Samudio’s participation in a major drug
venture and, rather than comparing him to his two codefendants who received
downward departures based on the government’s § 5K1.1 motion, found that he
should be treated the same as the codefendants who received 135-month sentences.
Roldan-Samudio’s offenses carried a statutory maximum term of life
imprisonment. 46 U.S.C. app. § 1903(g)(1) (repealed 2006); 21 U.S.C.
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§ 960(b)(1)(B)(ii). We hold that the district court’s 135-month sentence, which
was at the low end of the advisory Guideline range, significantly below the
applicable statutory maximum term of life imprisonment, and was the same
sentence imposed on Roldan-Samudio’s codefendants who were not beneficiaries
of a downward departure, was reasonable. Cf. Thomas, 446 F.3d at 1356-58
(rejecting the argument that the defendant’s 121-month sentence was unreasonable
when compared to his co-conspirators’ significantly lower sentences, as it was
“well within the bounds of reasonableness” for the district court to find that the
defendant was a leader or organizer and, therefore, impose a lengthier sentence).
In light of the foregoing, we
AFFIRM.
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