United States v. Javier Hernandez Rodriguez

[DO NOT PUBLISH]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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