[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 23, 2007
No. 06-14217 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20118-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO RUBEN PEREZ,
a.k.a. Raw Dawg,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 23, 2007)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Eduardo Ruben Perez appeals his sentence of 444 months of imprisonment
after pleading guilty to two counts of conspiracy to commit robbery and two counts
of robbery in violation of the Hobbs Act. See 18 U.S.C. § 1951(a). Perez argues
that the district court abused its discretion when it refused to allow him to
withdraw his guilty plea, erred when it denied him a minor-role adjustment, and
imposed an unreasonable sentence. We affirm.
Perez first argues that the district court abused its discretion when it refused
to allow him to withdraw his guilty plea before sentencing. Perez contends that he
was incompetent at the time he entered his guilty plea. We “review the denial of a
request to withdraw a guilty plea for abuse of discretion,” United States v. Freixas,
332 F.3d 1314, 1316 (11th Cir. 2003), and there is no abuse of discretion unless the
denial is arbitrary or unreasonable, United States v. Brehm, 442 F.3d 1291, 1298
(11th Cir. 2006). We will not overturn a determination of competency by a district
court unless it is clearly erroneous. United States v. Hogan, 986 F.2d 1364, 1372
(11th Cir. 1993).
The district court did not abuse its discretion. During the plea colloquy,
Perez stated under oath that he understood the proceedings and the consequences
of his guilty plea. Perez was evaluated by two doctors, both of whom found him
competent. Although Perez contended at the sentencing hearing that he lacked
competence at the plea colloquy, the district court found Perez’s statements to be
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“contrived and not credible”. Because the finding of the district court that Perez
was competent at the plea colloquy was not clearly erroneous, the district court did
not abuse its discretion by denying Perez’s motion to withdraw his guilty plea.
Perez next argues that the district court erred when it denied him an
adjustment based on his role in the offense, which Perez contends was minor.
Perez argues that, although he pleaded guilty to robbery and conspiracy to commit
robbery, the relevant conduct for purposes of determining his role in the offense is
first-degree murder, because his base offense level was calculated based on the
level for premeditated murder. See United States Sentencing Guidelines §
2B3.1(c) (Nov. 2005). We disagree.
We review the determination of a defendant’s role in an offense for clear
error. United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999).
“[T]he district court’s ultimate determination of the defendant’s role in the offense
should be informed by two principles discerned from the Guidelines: first, the
defendant’s role in the relevant conduct for which [he] has been held accountable
at sentencing, and, second, [his] role as compared to that of other participants in
[his] relevant conduct.” Id. at 940. “[A] defendant is not automatically entitled to
a minor role adjustment merely because [he] was somewhat less culpable than the
other discernable participants.” Id. at 944. “So long as the basis of the trial court’s
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decision is supported by the record and does not involve a misapplication of a rule
of law, we believe that it will be rare for an appellate court to conclude that the
sentencing court’s determination is clearly erroneous.” Id. at 945.
The district court did not clearly err in denying Perez a minor-role reduction.
Even if first-degree murder is the relevant offense against which Perez’s
participation is measured, Perez set up the robbery and knew physical force would
be used to complete the robbery. Perez then returned to the crime scene to remove
his fingerprints from the vehicle where the robbery and murder occurred. Perez
also participated in a second robbery with his conspirator.
Finally, Perez argues that his sentence is unreasonable. He argues that the
district court failed to give adequate weight to his level of intoxication during the
offense and his history of drug use. Perez also contends that the district court did
not give adequate weight to the facts that the victim was a drug dealer and Perez
gave an honest statement to law enforcement at the first available opportunity. We
disagree.
“Review for reasonableness is deferential.” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). “[T]he party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both [the]
record and the factors in section 3553(a).” Id. “When we review a sentence for
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reasonableness, we do not, as the district court did, determine the exact sentence to
be imposed.” Id. “We must evaluate whether the sentence imposed by the district
court fails to achieve the purposes of sentencing as stated in section 3553(a).” Id.
“[W]hen the district court imposes a sentence within the advisory Guidelines
range, we ordinarily will expect that choice to be a reasonable one.” Id.
Perez’s sentence of 444 months of imprisonment was reasonable. The
sentence was within the guidelines range and below the statutory maximum
sentence. Both the sentencing order and the transcript of the sentencing hearing
establish that the district court sentenced Perez after careful consideration of
Perez’s arguments in favor of mitigation, the Guidelines, and the sentencing factors
of section 3553(a).
Perez’s sentence is
AFFIRMED.
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