[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 10, 2008
THOMAS K. KAHN
No. 07-11565
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-20713-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER HERNANDEZ RODRIGUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 10, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Javier Hernandez-Rodriguez appeals his 142-month sentence, imposed after
he pled guilty to conspiracy to possess with intent to distribute five kilograms or
more of cocaine while on board a motor vessel, in violation of 46 U.S.C.
§ 70506(b), and the underlying substantive offense, in violation of 46 U.S.C.
§ 70503(a). Hernandez-Rodriguez raises two issues on appeal. First, he argues
that the district court erred in denying him a mitigating-role reduction pursuant to
U.S.S.G. § 3B1.2. Second, he argues that the district court failed to adequately
consider the 18 U.S.C. § 3553(a) factors.
I. Mitigating-role Reduction
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 defendant is a minor participant if he is
“less culpable than most other participants, but his role could not be described as
minimal.” U.S.S.G. § 3B1.2 cmt. n.5.
We review the district court’s determination of whether a defendant qualifies
for a mitigating-role reduction for clear error. United States v. Boyd, 291 F.3d
1274, 1277 (11th Cir. 2002).
The proponent of the reduction always bears the burden of proving
entitlement to the reduction by a preponderance of the evidence. United States v.
De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc). In determining whether a
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mitigating-role reduction is warranted, a district court should consider (1) “the
defendant’s role in the relevant conduct for which [he] has been held accountable
at sentencing,” and (2) his role “as compared to that of other participants in [his]
relevant conduct.” Id. at 940. In drug-courier cases, “examples of some relevant
factual considerations include: amount of drugs, fair market value of drugs, amount
of money to be paid to the courier, equity interest in the drugs, role in planning the
criminal scheme, and role in the distribution.” Id. at 945. “So long as the district
court’s conclusion as to defendant’s role in the offense is supported by the record,
and the court has resolved any disputed factual issues in conformity with Fed. R.
Crim. P. 32(c)(1), a simple statement of the district court’s conclusion is
sufficient.” Id. at 947.
The district court’s denial of Hernandez-Rodriguez’s request for a
mitigating-role reduction was not clearly erroneous, as the court adequately
considered Hernandez-Rodriguez’s role in the relevant conduct, as well as his role
as compared to that of other participants. The district court determined that
Hernandez-Rodriguez was “at least as culpable as his codefendant here and his
other crew members.” It also took into account the substantial amount of drugs
involved, 8,833 kilograms of cocaine, and its value, about $160,000,000. In the
end, Hernandez-Rodriguez failed to meet his burden of showing that he was
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entitled to a mitigating-role reduction by a preponderance of the evidence, and,
therefore, the district court did not err in denying him the reduction.
II. Reasonableness
Hernandez-Rodriguez argues for the first time on appeal that his sentence
was unreasonable because the district court failed to adequately consider the 18
U.S.C. § 3553(a) factors. He asserts that his lack of knowledge regarding the drug
venture and his difficult upbringing and family responsibilities were not properly
considered by the district court.
The district court must consider the following § 3553(a) factors to determine
a reasonable sentence:
(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.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam) (citing 18
U.S.C. § 3553(a)). However, in considering the guideline factors, the district court
need not discuss each of them individually. Id. Rather, “an acknowledgment by
the district court that it has considered the defendant’s arguments and the factors in
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section 3553(a) is sufficient under Booker.” Id. “[T]here is a range of reasonable
sentences from which the district court may choose” and the burden of establishing
that the sentence is unreasonable in light of the record and the § 3553(a) factors
lies with the party challenging the sentence. Id. at 788. Furthermore, “[t]he weight
to be accorded any given § 3553(a) factor is a matter committed to the sound
discretion of the district court[,] and [w]e will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir.), cert. denied, 76 U.S.L.W. 3275 (U.S. Nov. 26, 2007) (No. 07-6968) (internal
quotation marks omitted). Lastly, although we do not consider a sentence within
the guideline range to be per se reasonable, use of the guidelines remains central to
the sentencing process, and we will ordinarily expect a within-range sentence to be
reasonable. Talley, 431 F.3d at 787-88.
The district court correctly calculated the guideline range and adequately
considered the 18 U.S.C. § 3553(a) factors. In particular, the court weighed the
seriousness of the crime, as well as the need to punish and deter. It ultimately
imposed a sentence in the lower-middle of the guideline range. Accordingly, we
conclude that Hernandez-Rodriguez’s 142-month sentence is reasonable in light of
18 U.S.C. § 3553(a).
AFFIRMED.
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