[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13607 MAY 02, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00035-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO PAZ-RENGIFO,
Defendant-Appellant.
________________________
No. 06-13608
Non-Argument Calendar
________________________
D. C. Docket No. 06-00035-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NERY FABIAN GOMEZ-VALENZUELA,
a.k.a. John Edward Ramirez,
Defendant-Appellant.
________________________
No. 06-14407
Non-Argument Calendar
________________________
D. C. Docket No. 06-00035-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO CUERO-ESTASIO,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(May 2, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
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Ernesto Paz-Rengifo, Alberto Cuero-Estasio, and Nery Fabian Gomez-
Valenzuela appeal their sentences imposed after each pled guilty to one count of
conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, and
one count of possession with intent to distribute 5 kilograms or more of cocaine
while on board a vessel subject to the jurisdiction of the United States, in violation
of 46 App. U.S.C. § 1903(a), (g), and (j), 21 U.S.C. § 960(b)(1)(B)(ii), and 18
U.S.C. § 2. We affirm their sentences.
I. DISCUSSION
A. Minor-Role Reduction
Paz-Rengifo, Cuero-Estasio, and Gomez-Valenzuela assert each is entitled to
a two-level minor-role reduction, pursuant to U.S.S.G. § 3B1.2. Each asserts he
played a minor role within a larger cocaine-smuggling conspiracy and a minor role
compared to the roles played by other, unnamed persons involved in their cocaine-
smuggling venture. Paz-Rengifo specifically asserts he should not have received
the same sentence as the more-culpable captain of the boat, as this created an
unwarranted sentencing disparity.
Following the Supreme Court’s decision in United States v. Booker, 125 S.
Ct. 738 (2005), the sentencing court must still “consult the Guidelines and
correctly calculate the range provided by the Guidelines” in determining a
defendant’s sentence. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
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We review the district court’s findings concerning a defendant’s role in the offense
for clear error. United States v. DeVaron, 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.” United States v. Boyd, 291 F.3d 1274, 1277 (11th
Cir. 2002).
A district court may decrease a defendant’s offense level by two levels if it
finds the defendant was a “minor participant” in the criminal activity. U.S.S.G.
§ 3B1.2. A “minor participant” is a defendant “who is less culpable than most
other participants, but whose role could not be described as minimal.” Id. at
comment. (n.5).
There is two-pronged approach to determining whether a minor-role
reduction is warranted. See DeVaron, 175 F.3d at 940. First, “[o]nly if the
defendant can establish that [he] played a relatively minor role in the conduct for
which [he] has already been held accountable–not a minor role in any larger
criminal conspiracy–should the district court grant a downward adjustment for
minor role in the offense.” Id. at 944. In the drug courier context, the amount of
drugs imported may be dispositive of the defendant’s role in the offense. Id. at
943.
Second, “the district court may also measure the defendant’s culpability in
comparison to that of other participants in the relevant conduct.” Id. at 944. “First,
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the district court should look to other participants only to the extent that they are
identifiable or discernable from the evidence. This is a fact-intensive inquiry.
Second, the district court may consider only those participants who were involved
in the relevant conduct attributed to the defendant.” Id. It is possible that no
participant played a minor role. Id.
Paz-Rengifo, Cuero-Estasio, and Gomez-Valenzuela were held accountable
for trafficking 366 kilograms of cocaine, or the amount recovered from the area
where they were seen dumping, such that there is no risk they were held
accountable for conduct broader than their specific acts. See id. at 941. This
amount of cocaine was a significant amount. See id. at 943. None of these crew
members have satisfied their burdens of proving they played a minor role in
relation to trafficking this significant amount of cocaine. See Boyd, 291 F.3d at
1277.
Furthermore, the only participants in this cocaine-smuggling venture who
are identifiable from the record are Paz-Rengifo, Cuero-Estasio, Gomez-
Valenzuela, and their two codefendants. Each of these crew members helped
jettison cocaine from the boat upon being discovered by the U.S. Coast Guard
personnel. Cuero-Estasio also served as a driver. Paz-Rengifo, Cuero-Estasio, and
Gomez-Valenzuela have not satisfied their burdens of proving they were less
culpable than most of the other crew members. See De Varon, 175 F.3d at 944.
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Their contentions they were less culpable than other, unnamed participants in the
venture or a larger conspiracy are without merit. See id.
Accordingly, the district court did not clearly err in denying minor-role
adjustments to Paz-Rengifo, Cuero-Estasio, and Gomez-Valenzuela. We affirm
their sentences as to this issue.
B. Reasonableness
Paz-Rengifo and Cuero-Estasio contend their sentences are unreasonable.1
“After Booker, sentencing requires two steps.” United States v. Talley, 431 F.3d
784, 786 (11th Cir. 2005). The sentencing court must first correctly calculate the
defendant’s Guidelines range. Id. Second, the sentencing court must consider the
factors listed in 18 U.S.C. § 3553(a) to determine a reasonable sentence. Id. 18
U.S.C. § 3553(a) provides the sentencing court shall impose a sentence “sufficient,
but not greater than necessary” to comply with the purposes of sentencing, namely
reflecting the seriousness of the offense, promoting respect for the law, providing
just punishment for the offense, deterring criminal conduct, protecting the public
from future criminal conduct by the defendant, and providing the defendant with
needed educational or vocational training or medical care. The statute further
instructs the sentencing court to consider the nature and circumstances of the
offense and the history and characteristics of the defendant, the kinds of sentences
1
Gomez-Valenzuela does not challenge the reasonableness of his sentence.
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available, and the need to avoid unwanted sentencing disparities. 18 U.S.C.
§ 3553(a).
The district court is not required to discuss each factor or state on the record
that it has explicitly considered each factor. Talley, 431 F.3d at 786. Furthermore,
although a sentence within the Guidelines range will not be considered per se
reasonable, “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.
The district court correctly calculated both Paz-Rengifo’s and Cuero-
Estasio’s Guidelines range of 135 to 168 months’ imprisonment. Both were
sentenced to 135 months’ imprisonment, at the bottom of the Guidelines range.
Furthermore, in sentencing both Paz-Rengifo and Cuero-Estasio, the district court
properly considered the § 3553(a) factors and the defendant’s arguments. Paz-
Rengifo’s argument that receiving the same sentence as the captain of the boat
created an unwarranted sentencing disparity is without merit, as any different
treatment afforded the captain and Paz-Rengifo stemmed from the captain’s receipt
of a § 5K1.1 reduction and therefore was reasonable. Accordingly, we conclude
Paz-Rengifo’s and Cuero-Estasio’s sentences are reasonable.
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C. Safety-valve
Gomez-Valenzuela contends he was entitled to a two-level safety-valve
reduction, pursuant to U.S.S.G. § 2D1.1(b)(9). We review the district court’s
safety-valve decision for clear error and its legal conclusions de novo. United
States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006).
Pursuant to U.S.S.G. § 2D1.1(b)(9), a district court should grant a two-level
reduction to a defendant’s base offense level where the defendant meets certain
“safety-valve” criteria listed in U.S.S.G. § 5C1.2.2 The safety-valve criteria
include:
not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence
the defendant has concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or useful other information to
provide or that the Government is already aware of the information
shall not preclude a determination by the court that the defendant has
complied with this requirement.
U.S.S.G. § 5C1.2(a)(5). The defendant bears the burden of proving his satisfaction
of the § 5C1.2(a) criteria and eligibility for safety-valve relief. Milkintas, 470 F.3d
2
Pursuant to U.S.S.G. § 5C1.2, a district court can sentence a defendant without regard to
any statutory mandatory minimum if the defendant has met certain criteria. This provision
allows a district court to sentence a defendant within the Guidelines range, where that range
encompasses sentences below the mandatory minimum sentence. See United States v. Cruz, 106
F.3d 1553, 1556-57 (11th Cir. 1997). Section 5C1.2 is inapplicable to Gomez-Valenzuela
because the mandatory minimum for his convictions was lower than the bottom of his
Guidelines range.
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at 1345. It is the district court’s duty to determine the truthfulness and
completeness of the information provided by the defendant and where the district
court simply accepts the government’s position, this Court must vacate and remand
the case for the appropriate factfinding. United States v. Espinosa, 172 F.3d 795,
796-97 (11th Cir. 1999).
Based on the district judge’s statement that he recognized Gomez-
Valenzuela was not eligible for a safety-valve reduction because “in the
government’s view, he hasn’t been entirely truthful with regard to what transpired
in this case,” it appears the district court judge deferred to the Government’s
position in denying Gomez-Valenzuela’s safety-valve reduction. This conclusion
also is further supported by the district court judge’s statement that he did not
know whether Gomez-Valenzuela was being untruthful or whether Gomez-
Valenzuela’s codefendants were being untruthful. Such a reliance on the
Government’s arguments is a violation of the district court’s duty to make a
finding of fact regarding truthfulness and completeness, and the district court erred.
See Espinosa, 172 F.3d at 796.
“[O]nce the court of appeals has decided that the district court misapplied
the Guidelines, a remand is appropriate unless the reviewing court concludes, on
the record as a whole, that the error was harmless, i.e., that the error did not affect
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the district court’s selection of the sentence imposed.” Williams v. United States,
112 S. Ct. 1112, 1120-21 (1992) (citing Fed. R. Crim. P. 52(a)).
The district court’s error was harmless. Had the district court granted a 2-
level reduction of Gomez-Valenzuela’s base offense level under § 2D1.1(b)(9),
Gomez-Valenzuela’s Guidelines range would have been 135-168 months’
imprisonment, based on an offense level of 33. See U.S.S.G. ch. 5, pt. A, chart.
As Gomez-Valenzuela was sentenced to a non-Guidelines sentence of 135 months’
imprisonment, the same sentence as his co-conspirators, the 2-level reduction
would not affect his sentence. Accordingly, because a safety-valve reduction
would not result in a change in Gomez-Valenzuela’s sentence, we affirm Gomez-
Valenzuela’s sentence as to this issue.
II. CONCLUSION
Paz-Rengifo and Cuero-Estasio were not entitled to minor-role reductions
and did not receive unreasonable sentences. Additonally, Gomez-Valenzuela was
not entitled to a minor-role reduction, and any error by the district court in failing
to grant a safety-valve reduction was harmless. Thus, we affirm their sentences.
AFFIRMED.
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