[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 31, 2007
No. 07-11580 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00390-CR-T-30TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO CORDOVA-ESPINOZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 31, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Roberto Cordova-Espinoza appeals his concurrent 135-month sentences
imposed following his plea of guilty to conspiracy to possess with intent to
distribute five 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) and 21 U.S.C. § 960(b)(1)(B)(ii) and his plea of guilty to the underlying
offense of possession with intent to distribute five 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) and (g), 21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C.
§ 2.
I. BACKGROUND
On September 12, 2006, a United States Coast Guard team stopped a go-fast
vessel driven by Espinoza, who was accompanied by three other crew members.
On board, the Coast Guard team discovered 2,978 kilograms of cocaine. Espinoza
was the captain or master of the vessel and spoke on behalf of the crew members
in admitting their involvement in the drug trafficking operation.
At sentencing, Espinoza raised two objections to the Presentence
Investigative Report (“PSI”). First, Espinoza argued that the recommended
enhancement for his role as captain of the vessel was unwarranted because he: (1)
was only a de facto captain due to the pre-assigned captain’s failure to show for
the voyage; (2) possessed only elementary boating skills; and (3) received no
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additional compensation for being captain. Second, Espinoza argued that a minor
role reduction was warranted because: (1) the boat and drugs were not his; (2) he
received no profits from the sale of the cocaine (other than his expected pay of
$3,658); (3) he did not develop the route; (4) he had no role in the distribution of
the drugs; and (5) he was not the recipient of the drugs.
The district court granted the first objection and denied the second. The
resulting guideline range was 135-168 months. The district court determined that
a 135 month sentence was appropriate.
II. DISCUSSION
On appeal, Espinoza argues that the district court: (1) clearly erred by
denying him a minor-role reduction; and (2) imposed an unreasonable sentence.
A. Minor Role Reduction
“This Court has long and repeatedly held that 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 defendant, as the proponent of the downward
adjustment, bears the burden of proving the mitigating role in the offense by a
preponderance of the evidence. Id. at 939. In determining the defendant’s role,
the decision falls within the sound discretion of the district court: “a trial court’s
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choice between ‘two permissible views of the evidence’ is the very essence of the
clear error standard of review.” Id. at 945. A district court, however, “is not
required to make any specific findings other than the ultimate determination of the
defendant’s role in the offense.” Id. at 940.
The Sentencing Guidelines permit a court to decrease a defendant’s offense
level by two points if it finds that the defendant was a “minor participant” in the
criminal activity. U.S.S.G § 3B1.2(b). A minor participant is a defendant “who is
less culpable than most other participants, but whose role could not be described
as minimal.” U.S.S.G. § 3B1.2, comment. (n.5). In determining whether a
minor-role reduction is warranted, a district court “should be informed by two
principles discerned from the Guidelines.” De Varon, 175 F.3d at 940. Under the
first prong, which may be dispositive in many cases, “the district court must
measure the defendant’s role against the relevant conduct for which [he] was held
accountable at sentencing.” Id. at 945. We have held that relevant conduct is the
“conduct attributed to the defendant in calculating [his] base offense level.” Id. at
941. Under the second prong, the district court may “measure the defendant’s role
against the other participants, to the extent that they are discernable, in that
relevant conduct.” Id. at 945. A defendant, however, “is not automatically
entitled to a minor role adjustment merely because [he] was somewhat less
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culpable than the other discernable participants. Rather, the district court must
determine that the defendant was less culpable than most other participants in
[the] relevant conduct.” Id. at 944.
Under the first prong, Espinoza’s claim fails because the relevant conduct
for which he was held accountable, conspiring to import and possessing 2,978
kilograms of cocaine, was identical to his actual conduct in the offense. Because
Espinoza was only held accountable for the drugs that were on the boat he was
personally transporting, “[the] district court [could] legitimately conclude that
[Espinoza] played an important or essential role.” De Varon, 175 F.3d at 942-43.
As for the second prong, Espinoza asserts that the other crewmen received
minor-role reductions and their conduct was indistinguishable from his own.
Espinoza adds that two of the crewmen received the same pay as Espinoza. This
argument is unavailing. Although Espinoza was not hired as the captain of the
vessel, the record supports that he was recognized by the fellow crewmen as being
the one in charge and that he maintained that leadership role during the interviews
with the Coast Guard. Therefore, the district court could have legitimately found
that Espinoza was not less culpable than the other crewman on the boat. We
conclude that the district court did not clearly err in denying Espinoza a minor-role
reduction.
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B. Unreasonable Sentence
We review the final sentence imposed by the district court for
reasonableness.1 United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005).
Reasonableness review is deferential and “the 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. at 788. We review only
the final sentence for reasonableness rather than each individual decision made
during the sentencing process. United States v. Winingear, 422 F.3d 1241, 1245
(11th Cir. 2005).2 “[W]e 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.”
United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert. denied, —
U.S. —, 127 S. Ct. 3040, — L. Ed. 2d — (2007). The district court, however, is
not required “to state on the record that it has explicitly considered each of the §
1
The government asserts that the standard is plain error given that Espinoza did not raise the
reasonableness argument below. We need not decide the question because Espinoza’s argument fails
under a plain error or reasonableness standard.
2
In Rita v. United States, — U.S. —, 127 S. Ct. 2456, 2467-68, 168 L. Ed. 2d 203 (2007),
the Supreme Court upheld other circuits’ decisions affording a presumption of reasonableness to
sentences within the properly calculated Guidelines range; however, this circuit does not apply such
a presumption. United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007).
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3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott,
426 F.3d 1324, 1329 (11th Cir. 2005).
The factors in 18 U.S.C. § 3553(a) include the following:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness 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.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).
In this case, the district court did not impose an unreasonable sentence.
Espinoza argues that his remorse, his difficult living conditions in Mexico, his
need to support his children as a fisherman, and his individual history and
characteristics support a shorter sentence. Although the district court considered
these arguments, it nonetheless found that the sentence sufficiently addressed
Espinoza’s criminal conduct, and it was not unreasonable to do so. Espinoza
also argues that because he received a 135-month sentence and his three
codefendants received 70-month sentences, his sentences create “unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C § 3553(a)(6). The fact that disparity exists
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between Espinoza’s sentence and his codefendants is not controlling. We have
held that “[d]isparity between the sentences imposed on codefendants is generally
not an appropriate basis for relief on appeal.” United States v. Regueiro, 240 F.3d
1321, 1325-26 (11th Cir. 2001).3 This holding is especially applicable here where
Espinoza maintained a leadership role upon the vessel and, as such, he was not
similarly situated to his codefendants.
In addition, a sentence within the applicable guideline range has an
expectation of reasonableness. Talley, 431 F.3d at 788. Espinoza’s 135-month
sentence was at the lowest end of the guideline range, and far below the statutory
maximum for his crimes, which was life imprisonment. See United States v.
Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006), cert. denied, — U.S. —, 126 S.
Ct. 2946, 165 L. Ed. 2d 976 (2006) (concluding that a sentence almost one-third
the length of the statutory maximum sentence was reasonable). Accordingly, we
affirm.
AFFIRMED.
3
In Regueiro, we explained: “[T]o adjust the sentence of a co-defendant in order to cure an
apparently unjustified disparity between defendants in an individual case will simply create another,
wholly unwarranted disparity between the defendant receiving the adjustment and all similar
offenders in other cases.” Regueiro, 240 F.3d at 1326.
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