[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 2, 2007
No. 06-15236 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00640-CR-WSD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMA NUNEZ-GONZALES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 2, 2007)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Emma Nunez-Gonzales appeals her sentence imposed after she pled guilty to
attempt to import methamphetamine, in violation of 21 U.S.C. §§ 952(a),
960(a)(1), (b)(1)(H), 963; and attempt to possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846. Gonzales
asserts the district court erred in denying her a minor-role reduction. She further
contends her 140-month sentence is unreasonable. We affirm her sentence.
I. DISCUSSION
A. Minor-role reduction
We review a district court’s decision on whether to grant a minor-role
reduction for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). “[M]inor participants may receive a two-level reduction, and . . .
a minor role in the offense ‘means any participant who is less culpable than most
other participants, but whose role could not be described as minimal.’” Id. at 939
(citing U.S.S.G. § 3B1.2, comment. (n.3)). The defendant has the burden of
establishing her role by a preponderance of the evidence. Id. For a sentencing
court to determine whether to grant a minor-role reduction, it considers two
principles. Id. at 940. First, the court must measure the defendant’s role against
the relevant conduct for which she is being held accountable. Id. “Only if the
defendant can establish that she played a relatively minor-role in the conduct for
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which [s]he has already been held accountable–not a minor role in any larger
criminal conspiracy–should the district court grant” a minor-role reduction. Id. at
944. The second prong of the minor-role reduction analysis permits a district
court, “where the record evidence is sufficient . . . [, to] measure the defendant’s
conduct against that of other participants in the criminal scheme attributed to the
defendant.” Id. at 934. “[W]hen a drug courier's relevant conduct is limited to her
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.
Amendment 635 adopted De Varon and states a defendant who is held
accountable only for the conduct in which she was personally involved is not
precluded from being considered for a role reduction, if her function in the larger
conspiracy was limited. U.S.S.G. § 3B1.2, Amendment 635, App. C. It
specifically notes a defendant whose role is limited to transporting drugs, and who
is only held accountable for the drugs she personally transported, is not precluded
from a reduction. Id.
We upheld a district court’s determination that, under De Varon, it would be
an exceptional case, if not impossible, to grant a minor-role reduction where a
defendant is only held accountable for his own conduct. United States v. Boyd,
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291 F.3d 1274, 1276-77 (11th Cir. 2002). The defendant argued the district court
erred by creating a per se rule, but we found the district court followed De Varon
by measuring the defendant’s role against the relevant conduct for which he was
held accountable and that its comments were consistent with De Varon and did not
create a per se rule. Boyd, 291 F.3d at 1277-78.
Gonzales asserts the district court wrongly interpreted De Varon as
precluding a drug courier from receiving a minor-role reduction. The district
court, however, correctly conducted the De Varon analysis. It looked at the
conduct, as it must, for which Gonzales was held accountable. De Varon, 175 F.3d
at 934. It then noted that, where a defendant is held accountable only for the
conduct for which she is responsible, that assessment “can well be dispositive,”
and likened her case to the heroin importation in De Varon, where the defendant,
like Gonzales, was not held accountable for the manufacture of heroin, but only for
the importation. The court did not say it would not look at any other factor in
making the judgment regarding the role reduction, or that it was dispositive, only
that it could be. This was similar to the language we approved in Boyd. See Boyd,
291 F.3d at 1277.
Additionally, under the De Varon analysis, measuring Gonzales’s role
against the conduct charged was the crucial step, the one that the court “must” take,
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not, as in the second prong, one that it “may” take. See De Varon, 175 F.3d at 934.
The court then asked, pursuant to De Varon, what other participants could be used
to measure her conduct against, and Gonzales argued that, as compared with the
manufacturers and distributor, she would be less culpable. The court then heard a
proffer of what the Government’s evidence would be regarding Gonzales’s role.
Additionally, the court restated the defendant was not precluded from the role
reduction, but the fact she was held accountable only for her conduct could be
dispositive, and further found Gonzales failed to meet her burden to show
sufficient evidence that she was entitled to the reduction. This is correct, as the
court was not making a per se judgement. See Boyd, 291 F.3d at 1277.
Accordingly, as the district court correctly conducted the analysis and Gonzales
was only held responsible for her conduct, the district court did not clearly err in
not granting a minor-role reduction.
B. Reasonableness of sentence
We review the sentence imposed by the district court for reasonableness.
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (citing United States v.
Booker, 125 S. Ct. 738 (2005)). The Supreme Court has directed sentencing courts
to consider the following factors in imposing sentences under the advisory
Guidelines:
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(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide the defendant
with needed [treatment]; (3) the kinds of sentences available; (4) the
kinds of sentence and the sentencing range. . .; (6) the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and (7) the
need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a); Booker, 125 S. Ct. at 765-66. The district court must first
correctly calculate the defendant's Guidelines range, then, using the § 3553(a)
sentencing factors, the court can impose a more severe or more lenient sentence, as
long as it is reasonable. United States v. Crawford, 407 F.3d 1174, 1178-79 (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 that record and
the factors in section 3553(a).” Talley, 431 F.3d at 788.
Gonzales has not met her burden to demonstrate her sentence, below the
guideline range, was unreasonable. See id. First, the district court used the
§ 3553(a) factors in determining her sentence, including: (1) the severity of the
crime of importing a dangerous drug, such as methamphetamine, including the
effect that it has on society; (2) the need to deter crime; (3) the impact her sentence
would have on her family; and (4) the need for consistent sentencing. 18 U.S.C.
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§ 3553(a)(1), (2)(A),(B),(6). Additionally, although § 3553(a)(6) directs the
district court to “avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct,” Gonzales’s
sentence was higher than those of other couriers due to the purity of the
methamphetamine being a factor in determining the severity of the crime. See
U.S.S.G. § 2D1.1(b)(4) (specifically adding a two-level increase for the
importation of methamphetamine). Her sentence disparity argument is only in
reference to couriers who did not traffic pure methamphetamine, and not in
reference to those who have committed the same importation crime of 85% pure
methamphetamine. Therefore, she has not established her 140-month, below-
Guidelines sentence was unreasonable. See Talley, 431 F.3d at 788.
II. CONCLUSION
The district court did not err in denying Gonzales a minor-role reduction.
Additionally, her sentence is reasonable.
AFFIRMED.
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