United States v. Walter Canpaz

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 9, 2007
No. 07-11096 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-00345-CR-T-17TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WALTER CANPAZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(November 9, 2007)

Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

Appellant Walter Canpaz appeals the district court’s sentence of 135 months

imprisonment imposed following Canpaz’s guilty plea for (1) possession with

intent to distribute five kilograms or more of cocaine while aboard a vessel within

United States jurisdiction and (2) conspiracy to possess with intent to distribute
five kilograms or more of cocaine while aboard a vessel within United States

jurisdiction, both in violation of 46 U.S.C. app. § 1903.

I. BACKGROUND

On August 5, 2006, the United States Coast Guard observed a “go-fast”

speedboat without nationality markings located west of the Galapagos Islands in

the Eastern Pacific. Coast Guard officers observed four men aboard the vessel don

life jackets and jump into the water. The vessel was sinking and on fire. The

Coast Guard then extinguished the fire and rescued the crew.

Upon inspection of the vessel, authorities discovered that the scuttling valve

had been opened by the crew and found 733 kilograms of cocaine on the vessel.

All four men were arrested and brought to the United States. After Canpaz

pleaded guilty, the district court adopted the pre-sentence investigation report. It

found the adjusted offense level was 33 and, because Canpaz did not have any

prior convictions, the court sentenced him to 135 months imprisonment— the low

end of the 135 to 168 month range.

II. ANALYSIS

Canpaz appeals his sentence on two grounds. First, he argues that the

district court erred by not granting a minor-role reduction for his participation in

the overall criminal enterprise. Second, Canpaz contends that his sentence is

unreasonable and that we cannot presume a sentence is reasonable simply because

it fell within the sentencing Guidelines range. As the basis of his “unreasonable”

argument, Canpaz asserts that the sentence reflects a sentencing disparity when

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compared with sentences other defendants have received for committing the same

offense. Further, he argues that his status as an alien subjects him to a harsher

sentence than non-aliens would receive because of the customs and immigration

detainer.

a. The minor-role reduction

Canpaz claims that he was entitled to a minor-role reduction because he was

less culpable than the other participants, had no decision-making authority, and

had no supervisory role. 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). This is a fact-intensive

inquiry and, “[s]o long as the basis of the trial court’s decision is supported by the

record and does not involve a misapplication of a rule of law,” we will rarely

conclude that the district court’s determination is clearly erroneous. Id. at 945.

The district court need not make any specific findings other than the ultimate

determination of the defendant’s role in the offense. Id. at 940.

The Sentencing Guidelines provide for a downward adjustment of the

offense level “for a defendant who plays a part in committing the offense that

makes him substantially less culpable than the average participant.” U.S.S.G. §

3B1.2, comment. (n.3). A defendant who “is less culpable than most other

participants, but whose role could not be described as minimal” is granted a

two-level adjustment as a minor participant. Id., comment. (n.5). The defendant

bears the burden of proving a mitigating role in the offense by a preponderance of

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the evidence. De Varon, 175 F.3d at 939.

When determining a defendant’s role in the offense, the district court must

measure the defendant’s role against the relevant conduct attributed to him. Id. at

940-41. “[W]here the relevant conduct attributed to a defendant is identical to

[his] actual conduct, [he] cannot prove that [he] is entitled to a minor role

adjustment simply by pointing to some broader criminal scheme in which [he] was

a minor participant but for which [he] was not held accountable.” Id. at 941.

Similarly, the district court may measure the defendant’s role against other

participants who are identifiable from the evidence and who were involved in the

relevant conduct attributed to the defendant. Id. at 944. In the drug courier

context, the amount of drugs involved is a material consideration in the assessment

of the defendant’s role and, in some circumstances, may be a determinative factor.

De Varon, 175 F.3d at 943.

Here, we conclude that the district court did not clearly err in denying the

reduction. Canpaz was held responsible for only his own conduct, which included

the possession of over 700 kilograms of cocaine. He has offered nothing to meet

his burden to show he was entitled to a reduction. As the government notes,

Canpaz did not argue before the district court that other defendants in the same

jurisdiction have received lighter sentences, and he cannot now show plain error

based on this information in light of the large amount of drugs for which he was

held responsible. De Varon, 175 F.3d at 943.

Related to this minor-role argument, Canpaz also asserts that U.S.S.G. App.

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C, Amendments 640 and 668, provide relief. Amendments 640 and 668 provide

for a maximum offense level of 30, but these amendments only apply if the

defendant received the role reduction. Here, because the role reduction did not

apply, Amendments 640 and 668 were not applicable.

b. Reasonableness

Canpaz next argues that his sentence is unreasonable and that the court

cannot presume a reasonable sentence simply because it fell within the sentencing

Guidelines range. Canpaz contends that his sentence is unreasonable because it

reflects a sentencing disparity when compared with sentences other defendants

have received for committing the same offense. He also argues that his status as

an alien subjects him to a harsher sentence because of the customs and

immigration detainer. Accordingly, he claims a variance under § 3553(a) would

cure the violation.

We review a defendant’s sentence for reasonableness. Martin, 455 F.3d at

1237; United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005); United

States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). Canpaz bears the

burden of showing that his sentence is unreasonable. United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005).

A sentence may be reviewed for procedural or substantive

unreasonableness. A sentence may be unreasonable if it is the product of a

procedure that does not follow Booker’s1 requirements, regardless of the actual

1
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

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sentence. Additionally, a sentence may be substantively unreasonable, regardless

of the procedure used. United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.

2007).

Canpaz asserts that we are not bound by our pre-Booker precedent. But this

argument is inaccurate. As the government correctly notes, Canpaz conflates the

reasonableness standard with individual sentencing decisions. This court has held,

after Booker, the same standards apply to individual sentencing decisions that

existed before Booker. Thus, it is the ultimate sentence, and not the individual

decisions, that we review for reasonableness. United States v. Martin, 455 F.3d

1227, 1237 (11th Cir. 2006), 127 S.Ct. 2953 (2007).

Here, there was no procedural unreasonableness in Canpaz’s sentence. The

court stated that it knew the Guidelines were advisory, and it considered both the

Guidelines range and the § 3553(a) sentencing factors. See Talley, 431 F.3d at

786 (“[A]n acknowledgment by the district court that it has considered the

defendant’s arguments and the factors in section 3553(a) is sufficient under

Booker.”); United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). This

court does not presume reasonable a sentence within the properly calculated

Guidelines range. See United States v. Campbell, 2007 WL 2020170, *5 (11th

Cir. Jul 13, 2007); United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir. 2006).

Recently, however, the U.S. Supreme Court upheld such a presumption, noting

that a sentence, independently calculated by the district court in accordance with

Booker, that falls within the properly calculated Guidelines range “significantly

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increases the likelihood that the sentence is a reasonable one.” See United States

v. Campbell, 2007 WL 2020170 at *5 (citing Rita v. United States, 551 U.S. –,

127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Regardless of whether the district court

applied the presumption, on this record, in which the court followed Booker’s

requirements, there was no procedural unreasonableness.

Nor was the sentence imposed substantively unreasonable. The court

considered the sentencing factors and the Guidelines range and imposed a

sentence at the low end of the Guidelines. Given the amount of drugs involved,

the sentence was not unreasonable. Canpaz has not met his burden of showing his

sentence was unreasonable.

Finally, the court’s failure to consider Canpaz’s alien status was not plainly

erroneous, as alien status does not warrant a reduction. See United States v.

Veloza, 83 F.3d 380, 382 (11th Cir. 1996) (rejecting downward departure based on

status as an alien), overruled on other grounds, United States v. Campbell, 181

F.3d 1263 (11th Cir. 1999). Thus, we conclude that the sentence imposed was

reasonable.

III. CONCLUSION

Accordingly, we AFFIRM the decision of the district court.