[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 11, 2008
THOMAS K. KAHN
No. 07-11344
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00072-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS SALAZAR-FLORES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 11, 2008)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jose Luis Salazar-Flores appeals his 188-month sentence for possession with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(viii). After review, we affirm.
I. BACKGROUND
Salazar-Flores was arrested after he delivered methamphetamine to an
undercover Drug Enforcement Agency (“DEA”) agent. Salazar-Flores,
accompanied by Jose Ascencion-Perez, drove his pickup to a prearranged meeting
place at a Cracker Barrel restaurant. Salazar-Flores indicated to the DEA agent
that he was the person delivering the methamphetamine. Salazar-Flores walked the
agent to another car driven by Arbey Medina-Flores, Salazar-Flores’s cousin.
Salazar-Flores opened a rear passenger door and motioned to the DEA agent that
the drugs were in the back. When the DEA agent did not see any drugs, Medina-
Flores stated that the drugs were behind the cushioning of a child car seat and lifted
the cushioning. The DEA agent saw several cylindrical objects wrapped in
cellophane.
Using a razor blade produced by Salazar-Flores, the DEA agent opened one
of the packages and found a brown, powdery substance. After Salazar-Flores,
Medina-Flores and Ascencion-Perez were arrested, lab reports confirmed that the
substance consisted of 2.144 kilograms of a methamphetamine mixture.
At his plea hearing, Salazar-Flores indicated that he wished to enter a guilty
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plea, but also maintained essentially that he was a drug mule and that, although he
knew he was delivering drugs hidden in the child car seat, he did not know that the
drug was methamphetamine. Defense counsel expressed concern that there might
not be a factual basis for a guilty plea and that his client might not want to persist
in his plea. After a recess, Salazar-Flores entered a not guilty plea.
Salazar-Flores, Medina-Flores and Ascencion-Perez were tried together.
Salazar-Flores’s defense was that he was innocent because, although he suspected
there might be an illegal substance in the child car seat, he did not know for sure
and he did not know that the substance was methamphetamine. Salazar-Flores
called co-defendant Ascencion-Perez as a defense witness. Ascencion-Perez
testified that he and Salazar-Flores had gone to the Cracker Barrel restaurant for
work and were unaware of the drugs in the child car seat.
In addition, Salazar-Flores testified on behalf of his cousin Medina-Flores.
Specifically, Salazar-Flores testified that when he met the undercover agent, he
thought he was delivering the child car seat. Salazar-Flores also testified that he
did not know there were drugs in the car seat and that he thought the person to
whom he was delivering the car seat would give him work in construction or
painting. The jury convicted Salazar-Flores and his co-defendants.
Salazar-Flores’s PSI recommended a total adjusted offense level of 36,
3
which included a two-level enhancement for obstruction of justice. The PSI also
recommended that Salazar-Flores not receive an acceptance of responsibility
reduction. Based on a total offense level of 36 and a criminal history category of I,
the PSI recommended an advisory guideline range of 188 to 235 months’
imprisonment. The statutory mandatory-minimum sentence was ten years’
imprisonment. Salazar-Flores objected to the PSI, arguing, inter alia, that he was
entitled to an acceptance of responsibility reduction. In the addendum to the PSI,
the probation officer noted that Salazar-Flores declined to participate in an
interview after his conviction.
At sentencing, Salazar-Flores argued that his statements during his plea
hearing showed that he had accepted responsibility and that he was an uneducated
man who had been manipulated and influenced by others. The district court
overruled Salazar-Flores’s objection, finding that Salazar-Flores’s later trial
testimony denying liability was inconsistent with his statements at the plea hearing
and indicated that Salazar-Flores did not accept responsibility.
Addressing the 18 U.S.C. § 3553(a) sentencing factors, Salazar-Flores
argued that (1) he had only a second grade education, (2) he had come to the
United States only to find work and a better place for himself, (3) he had been
manipulated by a large drug organization, and (4) that he was “at the bottom” of
4
that drug organization. Salazar-Flores also pointed out that he had no prior
criminal history; had a wife and four children; and, as a removable alien, would be
held in an INS prison and returned to Mexico after he finished his sentence.
Salazar-Flores urged the district court to impose a ten-year sentence. In response,
the government noted that (1) Salazar-Flores had testified on Medina-Flores’s
behalf at trial, (2) there was evidence that the Cracker Barrel deal was not the first
transaction and (3) the amount of drugs involved did not warrant a sentence below
the advisory guidelines range.
The district court stated that it considered all of Salazar-Flores’s arguments
and the § 3553(a) factors, but found that the only mitigating factor was Salazar-
Flores’s lack of a prior criminal history. Additionally, the district court noted that
Salazar-Flores was in the country illegally, was involved in the distribution of a
substantial amount of methamphetamine, even if he was just a “mule,” and that he
had lied about his involvement. The district court imposed a 188-month sentence.
Salazar-Flores filed this appeal.
II. DISCUSSION
A. Acceptance of Responsibility Reduction
On appeal, Salazar-Flores argues that the district court clearly erred in not
providing a two-level acceptance of responsibility reduction, pursuant to
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U.S.S.G. § 3E1.1.1
A defendant is entitled to a two-level reduction if he “clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). The
commentary to § 3E1.1 indicates that in the “rare situation[]” that a defendant
proceeds to trial “to assert and preserve issues that do not relate to factual guilt,”
the defendant may be entitled to an acceptance of responsibility reduction if his
“pre-trial statements and conduct” demonstrate that he has accepted responsibility.
U.S.S.G. § 3E1.1 cmt. n.2. However, that commentary also provides that a
defendant who denies the “essential factual elements of guilt” at trial is not entitled
to an acceptance of responsibility reduction. Id.2
Here, the district court did not clearly err in finding that Salazar-Flores did
1
We review a district court’s factual findings concerning acceptance of responsibility for
clear error. United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005). “A district court’s
determination that a defendant is not entitled to acceptance of responsibility will not be set aside
unless the facts in the record clearly establish that a defendant has accepted personal
responsibility.” United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).
2
The relevant commentary to § 3E1.1 states in full:
This adjustment is not intended to apply to a defendant who puts the government to
its burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse. Conviction by trial,
however, does not automatically preclude a defendant from consideration for [the
acceptance of responsibility] reduction. In rare situations a defendant may clearly
demonstrate an acceptance of responsibility for his criminal conduct even though he
exercises his constitutional right to a trial. This may occur . . . where a defendant
goes to trial to assert and preserve issues that do not relate to factual guilt . . . . In
each such instance, however, a determination that a defendant has accepted
responsibility will be based primarily upon pre-trial statements and conduct.
U.S.S.G. § 3E1.1 cmt. n.2 (emphasis added).
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not accept responsibility for his drug trafficking offense. Salazar-Flores pled not
guilty and maintained his innocence during trial. His defense attempted to attack
the essential scienter element of his offense. He did not go to trial to assert and
preserve issues unrelated to his factual guilt. Thus, Salazar-Flores’s decision to go
to trial does not present one of the “rare situations” noted in the commentary to
§ 3E1.1 in which his entitlement to acceptance of responsibility can be
demonstrated by his admission during his plea hearing that he knew he was
delivering drugs. Under the circumstances, the record does not clearly show that
Salazar-Flores accepted responsibility for his offense.
B. Minor Role Reduction
Salazar-Flores argues for the first time on appeal that he should have
received a role reduction because he was a mere drug “mule.”3
If the defendant was a minor participant in the criminal activity, the district
court decreases the offense level by two levels. U.S.S.G. § 3B1.2(b). A minor
participant is one “who is less culpable than most other participants, but whose role
could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. n.5. If the defendant
3
Ordinarily, we review a district court’s determination of a defendant’s role in the offense
for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999). However,
because Salazar failed to request a minor-role reduction at sentencing, we review only for plain
error. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005) (applying
plain error review to sentencing issues not raised before the district court).
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was a minimal participant in the criminal activity, the district court decreases the
offense level by four levels. U.S.S.G. § 3B1.2(a). A minimal participant is one
who “plays a minimal role in concerted activity”; this phrase “is intended to cover
defendants who are plainly among the least culpable of those involved in the
conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. The defendant has the burden of
establishing his mitigating role in the offense by a preponderance of the evidence.
De Varon, 175 F.3d at 939.
Two principles guide a district court’s consideration: (1) the court must
compare the defendant’s role in the offense with the relevant conduct attributed to
him in calculating his base offense level; and (2) the court may compare the
defendant’s conduct to that of other participants involved in the offense. Id. at
940-45. When the relevant conduct attributed to a defendant is identical to his
actual conduct, he cannot prove he is entitled to a role reduction simply by pointing
to some broader scheme for which he was not held accountable. Id. at 941.
Here, the record does not suggest that it was error, let alone plain error, to
deny Salazar-Flores a role reduction. The district court calculated Salazar-Flores’s
offense level using the amount of drugs found in the child car seat. Thus, Salazar-
Flores’s relevant conduct and his actual conduct are identical, and he was not held
accountable for the larger drug conspiracy for which he claims to have worked
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only as a mule. Furthermore, the over two kilograms of methamphetamine mixture
found in the car seat is a substantial amount of drugs.
In addition, Salazar-Flores appears equally culpable with the other
participants in the drug transaction at the Cracker Barrel, namely his co-
defendants. See id. at 944 (explaining that it is possible that some conspiracies will
have no minor or minimal participants and that the district court should compare
the defendant’s role only to the other identifiable participants in the relevant
conduct and that “[t]he conduct of participants in any larger criminal conspiracy is
irrelevant”). From the evidence presented at trial and recounted in the PSI,
Salazar-Flores met with the undercover DEA agent, identified himself as the
person who would deliver the drugs and escorted the DEA agent to the car where
the drugs were hidden.4 He also handed the DEA agent a razor blade and asked
him if he wanted to verify the quality of the drugs. We cannot say, under these
facts, that Salazar-Flores was entitled to a role reduction.5
C. Reasonableness
4
We note that the government presented evidence at trial from which a reasonable
inference could be drawn that Salazar-Flores was the person identified only as “Chulucke,” who
arranged the drug transaction by telephone and claimed he could arrange future deliveries.
However, even if we disregard this evidence, Salazar-Flores’s role in the Cracker Barrel
transaction was not minor or minimal.
5
Because Salazar-Flores was not entitled to a role reduction, his argument that he was
entitled to a three-level reduction under U.S.S.G. § 2D1.1(a)(3), which is contingent upon
receiving a role reduction, is also without merit.
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Salazar-Flores contends that his 188-month sentence is unreasonable
because the district court did not adequately consider the § 3553(a) factors.6
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district
court, in determining a reasonable sentence, must consider the correctly calculated
advisory guidelines range and the § 3553(a) factors. United States v. Talley, 431
F.3d 784, 786 (11th Cir. 2005).7 Although the district court must consider the
§ 3553(a) factors, “nothing in Booker or elsewhere requires the district court to
state on the record that it has explicitly considered each of the § 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 weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court.” United States v.
Williams, 456 F.3d 1353, 1363 (11th Cir. 2006).
6
In Gall v. United States, the Supreme Court stated that its “explanation of
‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar abuse-
of-discretion standard of review now applies to appellate review of sentencing decisions.” Gall
v. United States, No. 06-7949, ___ U.S. ___, ___ S. Ct. ___, 2007 WL 4292116, at *6 (Dec. 10,
2007). The Supreme Court further explained that “[t]he uniqueness of the individual case . . .
does not change the deferential abuse-of-discretion standard of review that applies to all
sentencing decisions.” Id. at *8.
7
The § 3553(a) factors include: (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
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 unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. See 18 U.S.C. § 3553(a).
10
We have already concluded that the district court considered the correctly
calculated advisory guidelines range. Furthermore, although the district court did
not discuss each factor individually, it did state that it had considered the § 3553(a)
factors. The district court also stated that it had considered Salazar-Flores’s
arguments in mitigation, which included, among others, his assertions about his
limited education, his limited involvement in the transaction and his immigration
status, factors he now argues the district court inadequately considered. The
district court concluded that the only truly mitigating factor was Salazar-Flores’s
lack of a criminal history and placed greater weight on the large amount of drugs
involved and Salazar-Flores’s willingness to lie at trial about his involvement in
the offense. We cannot say that the district court abused its discretion in weighing
the various § 3553(a) factors or that the 188-month sentence, at low end of the
advisory guidelines range, was outside the range of reasonable sentences from
which the district court could choose.
AFFIRMED.
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