[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 31, 2008
No. 07-13733
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-20125-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNSO ALMONOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 31, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Ernso Almonor appeals his sentence of 188 months’ imprisonment for
conspiracy to import cocaine in an amount of 5 kilograms or more, 21 U.S.C.
§ 963 (Count One), importation of cocaine in an amount of 5 kilograms or more,
21 U.S.C. § 952(a) (Count Two), conspiracy to possess with intent to distribute
cocaine in an amount of 5 kilograms or more, 21 U.S.C. § 846 (Count Three), and
possession with intent to distribute cocaine in an amount of 5 kilograms or more,
21 U.S.C. § 841(a)(1) (Count Four).
On appeal, Almonor argues that his sentence was procedurally unreasonable1
because the district court (1) viewed the Guidelines as mandatory, or, at least
presumptively reasonable; and (2) did not properly consider the § 3553 factors or
adequately explain its reasons for choosing the sentence. Almonor argues that the
district court’s failure to adequately consider § 3553(a)(6), the need to avoid
unwarranted sentencing disparities between defendants with similar records who
have been convicted of similar conduct, is manifested by the fact that he received a
harsher sentence than his co-conspirator, Erla Occeus, who played a more
significant role in the offense.
Almonor further argues, for the first time on appeal, that the district court’s
view of Almonor and Occeus’s roles as comparable is not entitled to deference
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Almonor frames the issue as one of procedural and substantive reasonableness; however,
the issue has been restated here because his arguments pertain to the procedures used to impose
the sentence, and not the reasonableness of the total sentence.
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because the district court drew an “adverse inference” from Almonor’s exercise of
his Fifth Amendment privilege at trial and at sentencing. Almonor also argues, for
the first time on appeal, that, to the extent the district court’s findings regarding
relative culpability were based on information it learned at the sentencing of his
co-conspirator, those findings violate the Sixth Amendment Confrontation Clause,
as Almonor was not present at Occeus’s sentencing. He argues that, to the extent
the district court found that his acts of arranging for transportation payments,
picking up the shipment, and participating in the delivery were done without being
directed to do so by Occeus, the district court clearly erred because the evidence
adduced at trial showed that Occeus directed these acts.
Having reviewed the record and considered the briefs of the parties, we find
no reversible error. First, Almonor’s argument that the district court treated the
Guidelines as presumptively reasonable is not supported by the record. The district
court, after considering the PSI, objections to it, Almonor’s sentencing memo, and
the parties’ arguments at sentencing, explicitly stated that, in considering the
§ 3553(a) factors, it did not see anything warranting a sentence below the advisory
Guidelines range. Thus, the record reflects that the district court did not apply a
presumption of reasonableness to the Guidelines. Moreover, the district court’s
imposition of a sentence within the Guidelines range does not mean the court gave
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undue weight to the Guidelines, as it is within the discretion of the district court to
determine the weight it wishes to give to the Guidelines, so long as the court
considers the remaining § 3553(a) factors. United States v. Hunt, 459 F.3d 1180,
1185 (11th Cir. 2006).
The record likewise refutes Almonor’s argument that his sentence is
procedurally unreasonable because the district court did not adequately consider
the § 3553(a) factors. The district court considered the nature and circumstances of
the offense when it noted that Almonor had arranged for transportation payments,
picked up the cocaine, participated in the delivery, unloaded the cocaine, and called
the owner of the cocaine, 18 U.S.C. § 3553(a)(1). The district court considered
Almonor’s history and characteristics when it noted that he made “demonstratively
false statements” to authorities, 18 U.S.C. § 3553(a)(1). Additionally, the district
court stated that it decided that a sentence below the Guidelines range was not
warranted based on the § 3553(a) factors, and that a sentence of 188 months’
imprisonment was reasonable in light of the seriousness of the crime and
Almonor’s participation in it.
Moreover, it was not unreasonable for the court to impose the sentence
which differed from that imposed on his co-defendant, Occeus. First, Almonor and
Occeus were not convicted of the same conduct. Occeus was adjudicated guilty,
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pursuant to a plea agreement, of only one count of possession with intent to
distribute five kilograms for more of cocaine, in violation of 21 U.S.C. § 841(a).
Almonor was convicted at trial of conspiracy to import cocaine in an amount of 5
kilograms or more, 21 U.S.C. § 963 (Count One), importation of cocaine in an
amount of 5 kilograms or more, 21 U.S.C. § 952(a) (Count Two), conspiracy to
possess with intent to distribute cocaine in an amount of 5 kilograms or more, 21
U.S.C. § 846 (Count Three), and possession with intent to distribute cocaine in an
amount of 5 kilograms or more, 21 U.S.C. § 841(a)(1) (Count Four). Thus,
although their conduct was similar, Almonor was found guilty of far more conduct
than Occeus. See 18 U.S.C. § 3553(a)(6) (providing that the court shall consider
“the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”) (emphasis added).
Additionally, the district court noted that the only statements Almonor
provided to law enforcement were “demonstratively false,” and it was proper for
the district court to consider this under § 3553(a)(1), as it goes to “the history and
characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The district court noted
that the difference between Almonor’s and Occeus’s sentences was due to the
different decisions Occeus had made throughout the case and her cooperation with
the government, for which she received safety-valve relief.
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Almonor’s argument on appeal that his sentence is unreasonable because it
was based on facts found in violation of his Fifth and Sixth Amendment rights is
misplaced. As an initial matter, Almonor did not raise these objections below and,
therefore, this Court’s review of these issues is for plain error only. United States
v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). We do not find plain error.
Almonor’s argument based on the Sixth Amendment’s Confrontation Clause, that
the district court determined his relative culpability based on what was learned at
Occeus’s sentencing, is without merit, as “[t]he right to confrontation is not a
sentencing right.” United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.
2005). Accordingly, Almonor has not demonstrated any error based on his Sixth
Amendment right to confront witnesses.
Almonor’s argument based on the Fifth Amendment, that the district court
drew a factual inference against him based on his silence, is also misplaced. The
Fifth Amendment provides, inter alia, that no person “shall be compelled in any
criminal case to be a witness against himself.” The Supreme Court has held that,
the Fifth Amendment right against compelled self-incrimination applies at
sentencing so that no negative factual inference may be drawn at sentencing from a
defendant’s choice to remain silent with respect to the circumstances and details of
the crime. Mitchell v. United States, 526 U.S. 314, 328, 119 S.Ct. 1307, 1315, 143
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L.Ed.2d 424 (1999) (regarding the amount of drugs attributable to the defendant).
The Court explained that the holding was based on the government having the
burden at sentencing with respect to the facts it sought to establish with the
defendant’s silence, but it explicitly expressed no view as to whether a defendant’s
silence could bear upon determinations such as acceptance of responsibility for a
downward adjustment under U.S.S.G. § 3E1.1. Id. at 330, 119 S.Ct. at 1316.
Further, this Court, in United States v. Henry, 883 F.2d 1010, 1011 n.6 (11th Cir.
1989), stated that “[n]othing in section 3E1.1 authorizes enhancement of
punishment; it provides only for sentence reduction.” Because it is not clear
whether the Fifth Amendment’s right against compelled self-incrimination applies
at all where, as here, the district court is determining whether to grant a sentence
reduction, as opposed to an enhancement, Almonor cannot show plain error. See
Straub, 508 F.3d at 1008 (stating that an error must be clear or obvious for it to be
plain). The record, moreover, does not show that the district court made adverse
factual findings based on Almonor’s silence. The first statement with which
Almonor takes issue on appeal was a question the court posed to Almonor’s
attorney at sentencing during a discussion of safety-valve relief. The court asked
why Almonor had not given a statement to the government after going to trial and
asked whether there was at least the implication that he did not give a statement in
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order to protect the people for whom he had been working. Almonor responded,
through counsel, that he did not have information to give the government, except
what had come out during his trial. (Id. at 7). Thus, it appears that the district
court was merely inquiring as to why Almonor had not availed himself of the
opportunity to receive safety-valve relief.
The second statement that Almonor proffers as support for his contention
that the court violated his Fifth Amendment rights, is that, in finding that Almonor
had not met his burden of showing that he was entitled to a minor role, the court
noted that Almonor had not given any indication as to his role in the offense. The
district court was not resolving facts against Almonor, but was resolving a legal
issue against him, whether he was entitled to a minor role, based on his failure to
carry his burden of showing that he was deserving of a minor role. The district
court found that there was no evidence, including a statement from Almonor
regarding his role, from which it could conclude that Almonor was entitled to a
minor-role. Accordingly, Almonor has failed to establish plain error based on the
Fifth Amendment.
In short, the record in this case supports the sentence imposed by the district
court.
AFFIRMED
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