[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15204 ELEVENTH CIRCUIT
APRIL 27, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 02-20552-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR OLIVEROS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 27, 2010)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
After pleading guilty, Omar Oliveros appeals his concurrent 115-month
sentences for conspiracy with intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(A) and 846, and attempting to possess with intent to distribute
cocaine, also in violation of §§ 841(b)(1)(A) and 846. After review, we affirm, but
remand for the district court for the limited purpose of correcting a clerical error in
the judgment.
I. BACKGROUND
Because Defendant Oliveros claims he was entitled to a minor role reduction
in his sentence, we start with a review of the offense conduct.
A. Offense Conduct
In 2002, during a Drug Enforcement Agency (“DEA”) investigation into
drug trafficking in Colombia, an undercover agent and a confidential informant
(“CI”) negotiated with a cocaine source, “Arturo,” to ship 20 kilograms of cocaine
to Miami. Upon its arrival in Miami, two U.S. Customs Agents seized luggage
containing the cocaine.
The undercover agent and the CI coordinated with Arturo to deliver half the
cocaine to Jorge Cepero for $50,000.1 The agent and the CI met with Cepero, who
arrived with Defendant Oliveros. When the CI asked to see the payment for the
1
The other half of the cocaine was to be delivered to Albert Torres. Torres and another
individual were arrested when they met with the agent and the CI to take delivery of the other 10
kilograms of cocaine.
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cocaine, Defendant Oliveros left and retrieved money in his car. The agent and the
CI had Cepero and Defendant Oliveros follow them to another location, and, as
Cepero and Oliveros inspected the cocaine, they were arrested.
Defendant Oliveros was released on bond pending trial. After his release,
Oliveros failed to appear in court as required by the conditions of his release.
Oliveros remained a fugitive for seven years until he was arrested in Mexico and
extradited to the United States in 2009. Once back in the United States, Oliveros
pled guilty to the two drug counts and to a separate charge of failing to appear
before a court as required by conditions of pre-trial release, in violation of 18
U.S.C. § 3146(a)(1).
B. PSI
The presentence investigation report (“PSI”) calculated a base level offense
of 32, pursuant to U.S.S.G. § 2D1.1(c)(4), based on a drug quantity of at least 5
kilograms but less than 15 kilograms.2 The PSI added a 2-level enhancement for
obstruction of justice, pursuant to U.S.S.G. § 3C1.1, because Oliveros absconded
while on pretrial supervision. Although the PSI initially calculated an adjusted
offense level of 34, the revised PSI gave Oliveros a two-level safety valve
2
For purposes of calculating the offense level, the PSI grouped the failure to appear
offense together with the drug offenses, pursuant to U.S.S.G. § 3D1.2(c), because the failure to
appear offense was treated as a specific offense characteristic in, or other adjustment to, the
guideline applicable to the drug offenses.
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reduction pursuant to U.S.S.G. § 2D1.1(b)(11) after the government confirmed that
Oliveros met the safety valve criteria.
The PSI recommended an adjusted offense level of 32 with a criminal
history category of I, yielding an advisory guidelines range of 121 to 151 months.
The statutory minimum for Oliveros’s drug charges is 10 years with a maximum of
life, and the statutory maximum for the failure to appear charge is 10 years
consecutive to any other sentence.
The PSI noted that Defendant Oliveros was born in Cuba, settled in Miami
in 1995 after fleeing Cuba on a raft, worked as a car mechanic in Miami and later
as a handyman in Mexico, and regularly sent money to support his daughter who
lived in Cuba with Oliveros’s mother. Because Oliveros was classified an
aggravated felon, he was subject to removal proceedings.
Oliveros objected to the PSI’s failure to give a two-level minor role
reduction.3 Oliveros argued that while Cepero had contact with the cocaine
suppliers, set up the transaction, and had experience in drug trafficking, Oliveros
acted only as Cepero’s assistant.
Oliveros also requested a downward variance, arguing that he presented a
low risk of recidivism, that he fled to Mexico because of his perceived danger to
3
Oliveros also objected to not receiving a reduction for acceptance of responsibility,
which the district court overruled. Oliveros does not appeal this ruling.
4
himself or his family, that an unwarranted sentencing disparity would exist
between Oliveros and Cepero, that Oliveros already had spent five months in harsh
conditions in a Mexican prison while awaiting extradition, that he is a first-time,
non-violent offender, and that he had maintained employment to support his
mother and daughter.
C. Sentencing
At the sentencing hearing, the district court inquired about Oliveros’s
reasons for fleeing to Mexico for seven years while on pre-trial release. Oliveros’s
attorney explained that after Oliveros and Cepero were arrested, both agreed to
cooperate with the DEA and were released on bond. Cepero disappeared, leaving
Oliveros, who had no relationship with the cocaine suppliers and could not provide
the information the government wanted. Oliveros received an anonymous phone
call at work suggesting that it would be in his best interest to flee the country.
Because Oliveros feared that Cepero had let his contacts in South America know
that Oliveros was cooperating with the DEA, Oliveros decided to flee.
The government responded that Oliveros never told the agents of any threat
against him in order to avail himself of their protection, did not contact DEA or
Mexican authorities once he was in Mexico and would not have been found but for
the government’s own efforts.
5
The district court denied Oliveros’ request for a minor role reduction,
stating:
I think that the amount of cocaine involved here and the defendant’s
own activities with respect to the ten kilograms of cocaine for which
he was involved in providing the money are significant enough that a
minor role reduction would not be appropriate here, even if he’s less
culpable than other people who can be identified. His role was very
significant. Obviously, he was entrusted with a very large sum of
money by the members of this drug trafficking organization in order
to assist in taking delivery of the ten kilograms of cocaine. And as I
said, this is a very large amount of cocaine, and I do not think that a
minor role reduction is warranted or established by a preponderance
of the evidence in this case.
After confirming that Oliveros’s advisory guidelines range was 121 to 151 months,
the district court stated it was inclined to impose a low-end sentence.
Oliveros argued in favor of a downward variance, pointing out that: (1) he
was a first-time nonviolent offender and a hard worker; (2) he had a low risk of
recidivism; (3) his flight, which was based on his fears of reprisal, substantially
increased his guidelines range; (4) he played a limited role in the drug importation
scheme; (5) he was incarcerated in harsh conditions in Mexico while awaiting
extradition; and (6) the court had received numerous letters from his family and
friends evidencing his good character. Oliveros’s sister, Zulay, spoke on his
behalf, stating that Oliveros had worked hard in honest jobs to help his mother and
his daughter. Oliveros addressed the court, apologizing for his actions.
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The district court denied the request for a downward variance, stating:
This is no small matter. This case involved a large amount of cocaine.
It’s a very serious offense. It requires a serious punishment, and
certainly deterrence is an important factor in any drug trafficking case,
especially when we’re dealing with someone who sought safe harbor
in this country, sought to come here and sought the privileges of
living here, and then turned around really a short time after arriving
and attaining residency here and so terribly offending against the
United States by committing such a serious crime. So, I think a
guideline sentence is what’s called for here after considering all of the
factors, I think the seriousness of the offense, the need for deterrence,
and frankly, the history and characteristics of the defendant, the fact
that he would flee. I’d like to point out that the defense attempts to
describe what allegedly caused him to flee as a threat. Even the
defendant’s own description of what occurred doesn’t even rise to the
level of a threat. And as [the government] pointed out, the defendant
had choices other than to flee. So, I think that taking those factors
into account as well as all the other factors, a guideline sentence is the
most appropriate sentence in this case.
The court stated that it had considered the parties’ statements, the PSI, the advisory
guidelines range (121 to 151 months), and the statutory factors and found a
sentence at the low end of the range to be fair, reasonable, and sufficient to punish
and deter Oliveros. The court imposed concurrent 115-month sentences for the
two drug counts and a consecutive 6-month sentence for Oliveros’s failure to
appear, for a total period of incarceration of 121 months. Oliveros appealed the
sentences on the drug counts, but did not appeal the consecutive six-month
sentence for failing to appear.
II. DISCUSSION
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A. Minor Role Reduction
Section 3B1.2 of the Sentencing Guidelines provides for a two-level
decrease if the defendant was a minor participant in any 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 cannot be described as minimal. Id. § 3B1.2
cmt. n.5. The defendant has the burden of establishing his role in the offense by a
preponderance of the evidence. United States v. De Varon, 175 F.3d 930, 939
(11th Cir. 1999).
“Two principles guide the district court’s consideration: (1) the court must
compare the defendant’s role in the offense with the relevant conduct attributed to
him in calculating his base offense level; and (2) the court may compare the
defendant’s conduct to that of other participants involved in the offense.” United
States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006). When the relevant
conduct attributed to defendant is the same as his actual conduct, “he cannot prove
that he is entitled to a minor-role adjustment simply by pointing to some broader
scheme for which he was not held accountable.” Id.; see also De Varon, 175 F.3d
at 942-43 (concluding that“when a drug courier’s relevant conduct is limited to
[his] own act of importation, a district court may legitimately conclude that the
courier played an important or essential role in the importation of those drugs”).
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As to the second prong, the district court is permitted to “measure the
defendant’s conduct against that of other participants” but only “where the record
evidence is sufficient.” De Varon, 175 F.3d at 934. Furthermore, “[t]he fact that a
defendant’s role may be less than that of other participants engaged in the relevant
conduct may not be dispositive of role in the offense, since it is possible that none
are minor or minimal participants.” De Varon, 175 F.3d at 944.4
The district court did not clearly err in denying Oliveros’s request for a two-
level role reduction. As the district court noted, even if Oliveros was less culpable
than Cepero, he still played a significant role in the drug deal considering he was
entrusted with the large sum of money, $50,000, needed to complete it. The large
quantity of drugs involved also militates against finding a minor role. See id. at
943 (explaining that the amount of drugs is relevant to determining a participant’s
role in a drug conspiracy). Furthermore, Oliveros was not held accountable for the
larger importation conspiracy, but only for the 10 kilograms of cocaine he and
Cepero intended to purchase with the $50,000 Oliveros brought to the negotiations.
Under the circumstances, Oliveros did not show he played a minor role in the 10-
kilogram cocaine transaction.
B. Substantive Unreasonableness
4
A sentencing court’s determination of a defendant’s role in an offense constitutes a
factual finding that we review for clear error. De Varon, 175 F.3d at 937.
9
In reviewing the reasonableness of a sentence, we apply an abuse of
discretion standard using a two-step process. United States v. Pugh, 515 F.3d
1179, 1189-90 (11th Cir. 2008). First, we look at whether the district court
committed any significant procedural error and then we look at whether the
sentence is substantively unreasonable under the totality of the circumstances. Id.
at 1190. The party who challenges the sentence has the burden to show it is
unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United
States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).5 Although we do not
apply a presumption of reasonableness, we ordinarily expect a sentence within the
correctly calculated advisory guidelines range to be reasonable. United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
Oliveros argues that his 115-month concurrent sentences are unreasonable
because the district court focused solely upon the advisory guidelines range and
did not adequately consider his unique circumstances, such as his first-time
offender status, his low risk of recidivism, his reasons for fleeing and his lesser
5
The § 3553(a) factors include: (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. 18 U.S.C. § 3553(a).
10
role. Contrary to Oliveros’s claims, the district court heard and considered all of
these mitigation arguments. See United States v. Amedeo, 487 F.3d 823, 833 (11th
Cir. 2007) (explaining that the failure to discuss the defendant’s mitigation
arguments on the record does not mean the district court failed to consider or
ignored them). The district court concluded that Oliveros’s mitigating facts were
outweighed by seriousness of his offenses and the need for deterrence and did not
warrant a sentence below the advisory guidelines range. We have no reason to
disturb the district court’s weighing of the relevant factors. See id. at 832 (“The
weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” (quotation marks omitted)). Under the
circumstances, the district court did not abuse its discretion in imposing 115-month
concurrent sentences, which placed his drug sentences below the advisory
guidelines range of 121 to 151 months. In addition, even adding in the six-month
consecutive sentence, Oliveros has not shown his total sentence of 121 months is
substantively unreasonable.
C. Clerical Error
We sua sponte note that there is a clerical error in the judgment. See United
States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006) (“We may sua sponte raise
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the issue of clerical errors in the judgment and remand with instructions that the
district court correct the errors.”). The judgment states that Oliveros is to be
imprisoned for a term of “121 MONTHS. This term consists of 115 months as to
Counts One and Three in Docket No. 02CR20552 and 6 months as to Count One in
Docket No. 03CR20811, to be served concurrently.” The total amount of the
prison term and the district court’s statements during sentencing indicate, however,
that the six-month term must be served consecutively. The judgment should be
corrected to read, “This term consists of 115 months as to Counts One and Three in
Docket No. 02CR20552, to be served concurrently, and 6 months as to Count
One in Docket No. 03CR20811, to be served consecutively.” Accordingly,
although the underlying sentences are affirmed, we remand the case to the district
court to correct this clerical error.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.
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