United States v. Geovanny Zambrano

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 23, 2008
No. 07-13005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________

D. C. Docket No. 06-20556-CR-PAS

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

GEOVANNY ZAMBRANO,

Defendant-Appellant.
________________________

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

(April 23, 2008)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Geovanny Zambrano appeals his 46-month sentence for conspiracy to

possess with intent to distribute, and possession with intent to distribute, 100 grams

or more of heroin, violations of 21 U.S.C. § 846 and 21 U.S.C. § 841(1)(a). On
appeal, Zambrano argues that the district court erred by denying him a minor-role

reduction. In support of this argument, Zambrano identifies other individuals who

participated in the smuggling conspiracy, as well as unnamed handlers and

suppliers in Ecuador and the ultimate buyer in New York City, as discernable, and

more culpable, members of the conspiracy. Zambrano also highlights that the

particulars of the entire transaction were in the hands of others, and that he acted

without any discretion. He likens his involvement in the smuggling conspiracy to

a “local drug courier” acting as a “conduit.” After careful review, we affirm.

The district court’s determination as to whether a defendant qualifies for a

minor-role adjustment is a finding of fact that we review for clear error. United

States v. De Varon, 175 F.3d 930, 934 (11th Cir. 1999)(en banc). The proponent

of the downward adjustment always bears the burden of proving the mitigating role

in the offense by a preponderance of the evidence. Id. at 939.

The Sentencing Guidelines provide that a court should decrease a

defendant’s offense level by two if the court finds that the defendant was a “minor

participant” in the criminal activity. U.S.S.G. § 3B1.2. A defendant is a minor

participant if he 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, comment. (n.5).

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 In determining whether a minor-role adjustment applies, the district court

should consider the following two principles: “first, the defendant’s role in the

relevant conduct for which [he] has been held accountable at sentencing, and,

second, [his] role as compared to that of other participants in [his] relevant

conduct.” De Varon, 175 F.3d at 940. On the first De Varon prong, we have

explained that, “[o]nly if the defendant can establish that [he] played a relatively

minor role in the conduct for which [he] has already been held accountable -- not a

minor role in any larger criminal conspiracy -- should the district court grant a

downward adjustment for minor role in the offense.” Id. at 944. As for the second

De Varon prong, we have determined that a district court should look to other

participants only to the extent that they (1) “are identifiable or discernable from the

evidence,” and (2) “were involved in the relevant conduct attributed to the

defendant.” Id. We have recognized, however, that the first prong set forth in De

Varon may, in many cases, be dispositive. Id. at 945. In discerning a defendant’s

culpability in the offense, some relevant factors include: the amount and fair

market value of the of drugs, the amount of money to be paid to the courier, the

equity interest in the drugs, the role in planning the criminal scheme, and the role

in the distribution. Id.

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 Here, Zambrano was held accountable only for his own conduct in the

conspiracy: exchanging money for 698.9 grams of heroin and intending to

distribute the heroin in exchange for more money. According to the Presentence

Investigation Report (“PSI”), Zambrano: (1) provided his own funds to purchase

70 pellets of heroin; and (2) planned to make a $5,000 profit from the subsequent

sale of the heroin. Because Zambrano’s significant actual conduct was the same as

the conduct for which he was held accountable at sentencing, under the first prong

of the De Varon analysis, he was not entitled to a minor-role reduction.

Turning to the second principle of De Varon, the district court committed no

clear error err by finding that Zambrano did not play a minor role when compared

to the other participants. We are unpersuaded by Zambrano’s assertions that he did

not coordinate the smuggling venture, did not recruit other conspirators to smuggle

the heroin, and did not instruct any person in the United States. Even if the record

supports all of these factual assertions -- an issue we need not reach -- those facts

do not suggest that Zambrano played a minor role in the conduct for which he was

held accountable, but rather, tend to show that Zambrano was not involved in the

larger drug conspiracy. In short, that alone is not enough to support a mitigating

role adjustment. See De Varon, 175 F.3d at 944. According to the PSI, Zambrano

provided his own funds to purchase the heroin and planned to make a profit from

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the sale of the heroin. He located a buyer, “Coyote,” for the heroin himself, and

then contacted the confidential informant to set up a sale of the heroin. In short,

these facts, which were cited by the district court, all support the court’s ultimate

finding, on the second De Varon prong, that Zambrano did not play a minor role

compared to others in the offense for which he was held accountable. See De

Varon, 175 F.3d at 945.

On this record, the district court did not commit clear error when it denied

Zambrano’s request for a minor-role reduction.

AFFIRMED.

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