United States v. Pedro Pinales-Espinal

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13576 ELEVENTH CIRCUIT
APRIL 21, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 08-00492-CR-WSD-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO PINALES-ESPINAL,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 21, 2010)

Before BLACK, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Defendant Pedro Pinales-Espinal (“Pinales”) appeals his 46-month sentence

for possessing with intent to distribute at least 100 grams of heroin, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B)(i), and importing the same into the United

States, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and (b)(2)(A). On appeal,

he argues that the district court erred in denying him a two-level reduction for

being a minor participant under U.S.S.G. § 3B1.2(b). Pinales also argues that his

sentence is unreasonable because the court unduly emphasized the sentencing

guideline range and did not account for the § 3553(a) factors, other than general

deterrence, resulting in a sentence greater than necessary to comply with the

purposes of sentencing. Having read the parties’ briefs and reviewed the record,

we discern no error. Accordingly, we affirm.

We review a district court’s determination of whether a defendant is entitled

to a mitigating role reduction for clear error. United States v. De Varon, 175 F.3d

930, 937 (11th Cir. 1999) (en banc). The defendant has the burden of establishing

entitlement to a reduction by a preponderance of the evidence. Id. at 939.

“[A] district court’s determination of a defendant’s mitigating role in the

offense should be informed by two modes of analysis.” De Varon, 175 F.3d at

945. First, and most important, the district court must decide whether the

defendant is a minor participant in relation to the relevant conduct for which he has

been held accountable. Id. This inquiry will often be dispositive. Id. If a

2
defendant’s actual conduct is identical to the relevant conduct considered for

sentencing purposes, the defendant cannot prove that an adjustment is appropriate

“simply by pointing to some broader criminal scheme in which [he] was a minor

participant but for which [he] was not held accountable.” Id. at 941. Second, “the

district court may also measure the defendant’s role against the other participants,

to the extent that they are discernable, in that relevant conduct.” Id. at 945. Not all

participants are relevant, and two guiding principles apply in this regard: (1) “the

district court should look to other participants only to the extent that they are

identifiable or discernable from the evidence”; and (2) “the district court may

consider only those participants who were involved in the relevant conduct

attributed to the defendant. The conduct of participants in any larger criminal

conspiracy is irrelevant.” Id. at 944.

In making the ultimate finding concerning the defendant’s role, the district

court should measure the facts against each mode of the analysis. Id. at 945. In the

drug courier context, we have set forth a non-exhaustive list of factors for the

district court to consider in making the determination, including the amount of

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

any equity interest the courier might have in the drugs, the courier’s role in

planning the criminal scheme, and the courier’s role in the distribution. Id. In the

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final analysis, the decision of whether a drug courier qualifies for a minor-role

reduction “falls within the sound discretion of the trial court.” Id.

In this case, the district court’s conclusion that Pinales was not entitled to a

minor role reduction was not clear error. The district court properly applied the

analytical framework set out in De Varon. In relation to the first inquiry under De

Varon, the district court correctly found that Pinales’ actual conduct, ingesting and

carrying 614 grams of heroin into the country, was identical to the relevant conduct

for which he was held accountable. In relation the second inquiry under De

Varon, the district court did not err when it found that Pinales failed to name any

identifiable participant in the same relevant conduct against whom his conduct

could be measured. Although it is undisputed that a man identified as Machado-

Morales notified U.S. agents that Pinales might try to enter the country with drugs,

Pinales produced no evidence demonstrating that Machado-Morales was involved

in Pinales’ relevant conduct. That being the case, the district court did not err in

finding that Machado-Morales was not a participant in Pinales’ relevant conduct.

Because both modes of analysis set out in De Varon indicate that Pinales was not

entitled to a minor-role reduction, the district court did not clearly err in finding

that Pinales was not entitled to a minor-role reduction.1

1
Additionally, we note that Pinales’ argument that the district court did not give
consideration to the purity level of the heroin in this case is without merit.

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II.

In reviewing the reasonableness of a sentence, we apply an abuse-of-

discretion standard. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

We first review a sentence for procedural error. Id. If no procedural error is

found, we then examine whether the sentence is substantively reasonable under the

totality of the circumstances. Id.

A district court commits procedural error where, among other things, it

miscalculates the advisory guideline range, treats the guidelines as mandatory, fails

to consider the 18 U.S.C. § 3553(a) factors, selects a sentence based on clearly

erroneous facts, or fails to explain adequately the chosen sentence. Id. In its

consideration of the § 3553(a) factors, the district court does not need to discuss

each factor explicitly. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

“[A]n acknowledgment by the district court that it has considered the defendant’s

arguments and the factors in section 3553(a) is sufficient under [United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)].” Id.

The party challenging the sentence has the burden of establishing

unreasonableness in light of the record and the § 3553(a) factors. Id. at 788. A

sentence is substantively unreasonable “if it does not achieve the purposes of

sentencing stated in § 3553(a).” Pugh, 515 F.3d at 1191 (internal quotation marks

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omitted). “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court,” and this Court “will not

substitute [its] judgment in weighing the relevant factors.” United States v.

Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (internal quotation marks omitted).

Although we apply no presumption as to the reasonableness of a sentence within

the Guidelines range, “ordinarily we would expect a sentence within the Guidelines

range to be reasonable.” Talley, 431 F.3d at 788.

The district court committed no procedural error. Because it was not error to

deny Pinales a minor-role reduction, the Guidelines range calculation was correct.

The record does not support Pinales’ argument that the Guidelines range alone

motivated the court’s sentencing decision. The court explicitly stated that it took

into account all of the § 3553(a) criteria, along with the parties’ arguments.

Moreover, the court discussed Pinales’ background, the nature of his offense, the

seriousness of his offense, and the need to afford adequate deterrence. Thus,

Pinales has failed to demonstrate any procedural error.

Finding no procedural error, we now examine whether the sentence is

substantively unreasonable under the totality of the circumstances. The record

does not support Pinales’ contention that the district court somehow unduly

emphasized general deterrence at the expense of the other § 3553(a) factors.

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Instead, the record shows that the district court considered the Guidelines range

and the arguments of the parties pertaining to the § 3553(a) factors. As we noted,

the district court specifically discussed the nature and circumstances of the offense,

the background of the defendant, the applicable Guidelines range, and both specific

and general deterrence. Weighing those factors, the district court rendered an

individualized sentence, one that was at the low end of the Guidelines range. This

Court does not ordinarily substitute its judgment in weighing the relevant factors,

Amedeo, 487 F.3d at 832, and the record does not indicate that the district court

abused its considerable discretion in this regard. Under the totality of the

circumstances, it cannot be said that Pinales’ sentence, imposed at the low end of

the Guidelines range, was greater than necessary to accomplish the purposes of

sentencing. Accordingly, Pinales has not satisfied his burden of establishing

substantive unreasonableness in light of the record and the § 3553(a) factors.

Upon review of the record, and consideration of the parties’ briefs, we

affirm.2

AFFIRMED.

2
Appellant’s request for oral argument is denied.