[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10322 ELEVENTH CIRCUIT
Non-Argument Calendar JAN 3, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00013-WSD-RGV-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllll lllll`lllPlaintiff-Appellee,
versus
IRVIN MONJE-MALDONADO,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 3, 2012)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Irvin Monje-Maldonado (“Monje”) appeals his total 130-month sentence for
conspiring to manufacture, distribute, and possess with the intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One) and
possession with the intent to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) (Count Two). On appeal, Monje argues that: (i) the district court erred
in refusing to apply a two-level reduction under U.S.S.G. § 3B1.2 for his allegedly
minor role in the offense; and (ii) his below-range total sentence was substantively
unreasonable.
A district court’s determination of whether a defendant qualifies for a
mitigating role adjustment under the guidelines is a finding of fact that will be
reviewed only for clear error. United States v. De Varon, 175 F.3d 930, 934 (11th
Cir. 1999) (en banc). The district court has considerable discretion in making this
fact-intensive determination. Id. at 946. The defendant bears the burden of
establishing his role by a preponderance of the evidence. Id. at 934. Counsel’s
allegations alone are insufficient to resolve a disputed sentencing issue. See
United States v. Kapelushnik, 306 F.3d 1090, 1095 (11th Cir. 2002) (holding that
counsel’s allegations were an insufficient basis on which to grant a departure
under U.S.S.G. § 5K2.0).
The guidelines provide for a two-level reduction if the defendant was a
2
minor participant. U.S.S.G. § 3B1.2(a), (b). A minor participant is one who is
less culpable than most other participants, but whose role could not be described
as minimal. Id. (n.5).
In determining a defendant’s role, the district court must first measure the
defendant’s role in relation to the relevant conduct attributed to him in calculating
his base offense level. De Varon, 175 F.3d at 941. When the relevant conduct
attributed to a defendant is identical to his actual conduct, the defendant cannot
prove entitlement to a mitigating role adjustment simply by pointing to some
broader criminal scheme for which he was not held accountable. Id.
Although the first part of the analysis may be dispositive in determining the
defendant’s role, a court may also measure the defendant’s culpability in
comparison to that of other participants in the relevant conduct attributed to the
defendant. Id. at 944-45. When doing so, a district court may consider only those
participants who are identifiable by the evidence and who were involved in the
relevant conduct for which the defendant was convicted. Id. at 944. The fact that
a defendant’s role may be less than that of others engaged in the relevant conduct
may not be dispositive, since it is possible that none are minimal or minor
participants. Id. The district court must determine that the defendant “was less
culpable than most other participants” in his relevant conduct. Id. (emphasis in
3
original); see also United States v. Cacho, 951 F.2d 308, 309-10 (11th Cir. 1992)
(concluding that the district court properly refused to grant a minor role
adjustment where the defendant traveled with his co-conspirators, was present
when his co-conspirators had drugs strapped to their bodies, and knew that they
were all part of a plan to bring drugs into the United States).
We review the reasonableness of a sentence under a deferential abuse of
discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct.
586, 591, 169 L.Ed.2d 445, 451-52 (2007). The district court is required to
impose a sentence sufficient, but not greater than necessary, to comply with the
purposes listed in § 3553(a)(2), including the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter
criminal conduct, and protect the public from the defendant’s future criminal
conduct. 18 U.S.C. § 3553(a)(2).
The party challenging the sentence has the burden of establishing that it is
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Although we do not automatically presume a sentence within the guideline range
is reasonable, we ordinarily expect such a sentence to be reasonable. United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence imposed well
below the statutory maximum is another indicator of a reasonable sentence. See
4
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Upon review of the record and consideration of the parties’ briefs, we
affirm.
The district court was correct in refusing to grant Monje’s request for a
minor role reduction where he admitted to transporting a much larger amount than
he was charged with, and the amount attributed to him was very large. Under the
second De Varon prong, as the district court noted, Monje played an integral role
in the conspiracy, especially considering the large amount of drugs he transported
and the drugs would have gone nowhere without his role being fulfilled.
Additionally, Monje’s total sentence met the goals encompassed within § 3553(a).
It was undisputed that Monje transported large amounts of methamphetamine, and
the district court specifically took into account Monje’s age and other
characteristics when determining an appropriate sentence. In light of these
circumstances, Monje has not shown that his total 130-month sentence was
unreasonable. Accordingly, we affirm.
AFFIRMED.
5