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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12346
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00269-SDM-TBM-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS FERNANDO MANCILLAS MEDINA,
a.k.a. Perico,
a.k.a. Nino,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 20, 2016)
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Before WILLIAM PRYOR, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
Luis Mancillas Medina appeals his 210-month sentence, imposed after
pleading guilty to one count of conspiracy to distribute and possess with intent to
distribute five or more kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(ii), and 846, and one count of laundering of monetary
instruments and engaging in monetary transactions in property derived from
specified unlawful activity, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 1956(h),
and 1957. On appeal, Medina argues that the district court erred in applying a
dangerous weapons enhancement based on the possession of firearms by Medina’s
co-conspirators. Medina also contends that the district court erred in deciding he
was not entitled to a minor role reduction. Lastly, Medina argues that his sentence
is substantively unreasonable, as he is similarly situated to another member of the
conspiracy who received a lesser sentence. Upon review of the record and the
parties’ briefs, we affirm.
I. BACKGROUND
A grand jury charged Medina with one count of conspiracy to distribute and
possess with intent to distribute five kilograms or more of cocaine and one count of
laundering of monetary instruments and engaging in monetary transactions in
property derived from specified unlawful activity. He pled guilty to both counts.
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Medina and several other co-conspirators were part of a large-scale drug
trafficking and money laundering organization that transported and distributed
hundreds of kilograms of narcotics—including cocaine, methamphetamine, and
marijuana—throughout the United States. One of Medina’s co-defendants, Hugo
Ramirez, was a leader of the organization. The criminal enterprise used several
means to transport drugs and drug proceeds, including shipping drugs via parcel
service, concealing drugs in cars, and sending couriers cross-country to retrieve
drug proceeds.
Medina joined the organization in 2001 and worked closely with Ramirez.
Medina delivered hundreds of kilograms of cocaine, methamphetamine, and
marijuana and also received, counted, concealed, and transported millions of
dollars in drug proceeds for Ramirez. As one of the leaders of the criminal
conspiracy, Ramirez was responsible for transporting 400 to 500 kilograms of
cocaine and thousands of pounds of marijuana throughout the United States.
Medina worked directly for Ramirez and assisted him in almost every transaction.
Another of Medina’s co-defendants, Maria Hernandez, performed a similar
role within the conspiracy, albeit on a much smaller scale. Hernandez was brought
into the conspiracy by family members and acted as a courier with little or no
understanding of the scope of the broader drug trafficking conspiracy. She was
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responsible for transporting drug proceeds on at least three occasions and was
accountable for at least $200,000 in transported drug proceeds.
Law enforcement officials eventually succeeded in infiltrating and
dismantling the criminal enterprise. In addition to arresting Medina and seizing a
large quantity of narcotics and drug proceeds, officials also seized multiple
firearms while arresting Medina’s co-conspirators. These included two handguns
in a backpack that also contained several grams of methamphetamine and
marijuana, a rifle and several handguns recovered from a hotel room where
officials also seized several kilograms of cocaine, a handgun located in a car
containing over two kilograms of methamphetamine, and a rifle surrendered to law
enforcement by a confidential witness.
After Medina pled guilty, a probation officer prepared a presentence
investigation report (“PSI”) that calculated a Sentencing Guidelines range of 168 to
210 months’ imprisonment. The calculation included a dangerous weapons
enhancement to Medina’s base offense level because several of his co-conspirators
possessed and transported firearms in conjunction with the drug trafficking
operation.
At his sentencing hearing, Medina objected to the calculation of his
guidelines range, arguing that the dangerous weapons enhancement was
inappropriate because there was no evidence that he possessed or was involved in
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the transportation of firearms and that he had no reason to foresee that the firearms
were part of the drug trafficking and money laundering conspiracy. He also
requested a minor role designation, arguing that, because he acted only as a
courier, his role was distinguishable from those of his co-conspirators. The district
court denied Medina’s objection to the application of the dangerous weapons
enhancement and his request for a minor role designation. After hearing
arguments from both parties, the court sentenced Medina to 210 months’
imprisonment for each count, sentences at the top of the guidelines range, to be
served concurrently. Medina raised no objection to his sentence before the district
court. This is his appeal.
II. DISCUSSION
A. Dangerous Weapons Enhancement
On appeal, Medina contends that the district court erred in applying a two-
level dangerous weapons enhancement when calculating his guidelines range. We
review a district court’s interpretation and application of the Sentencing Guidelines
de novo and its factual findings for clear error. United States v. Smith, 480 F.3d
1277, 1278 (11th Cir. 2007).
“The federal Sentencing Guidelines provide that, if a dangerous weapon
(including a firearm) was possessed during a drug-trafficking offense, then a
defendant’s offense level should be increased by two levels, unless it is clearly
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improbable that the weapon was connected to the offense.” Id.; U.S.S.G.
§ 2D1.1(b)(1). A court may apply this enhancement even if the defendant was not
himself in possession of a weapon as long as his co-conspirators were. See United
States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006). For the enhancement to
apply in those circumstances, the government must establish by a preponderance of
the evidence that “(1) the possessor of the firearm was a co-conspirator, (2) the
possession was in furtherance of the conspiracy, (3) the defendant was a member
of the conspiracy at the time of possession, and (4) the co-conspirator possession
was reasonably foreseeable by the defendant.” Id. (internal quotation marks
omitted). Once the government demonstrates that a firearm was present, “the
evidentiary burden shifts to the defendant to show that a connection between the
firearm and the offense is clearly improbable.” Id. (internal quotation marks
omitted). For sentencing purposes, whether a firearm was possessed is a factual
finding, which we review for clear error. United States v. Stallings, 463 F.3d 1218,
1220 (11th Cir. 2006).
Regarding the reasonable foreseeability of a firearm’s possession, “we have
noted that numerous cases have recognized that guns are a tool of the drug trade.
There is a frequent and overpowering connection between the use of firearms and
narcotics traffic.” Id. at 1246 (internal quotation marks omitted). Notably,
however, “the mere fact that a drug offender possesses a firearm does not
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necessarily give rise to the firearms enhancement.” Stallings, 463 F.3d at 1221.
“The government must show some nexus beyond mere possession between the
firearms and the drug crime.” Id. In other words, the government must
demonstrate that a firearm had “some purpose or effect with respect to the drug
trafficking crime; its presence or involvement cannot be the result of accident or
coincidence.” Id. at 1220 (internal quotation marks omitted).
The district court did not clearly err in applying the firearms enhancement to
Medina. Possession of firearms by Medina’s co-conspirators was reasonably
foreseeable and in furtherance of the conspiracy. While Medina was not
personally found with a firearm, law enforcement officials seized multiple firearms
while apprehending his co-conspirators. 1 These firearms were found in close
proximity to narcotics, suggesting that their possession was in furtherance of the
1
It is not entirely clear from the record whether and which of these weapons were loaded
when law enforcement officers seized them. Medina contends that the government’s failure to
demonstrate that the guns were loaded makes the enhancement improper because it casts doubt
on whether possession of the firearms was in furtherance of the conspiracy. But even assuming
the guns were not loaded, we see no clear error in concluding that possession of those guns by
Medina’s co-conspirators was in furtherance of the conspiracy and reasonably foreseeable by
him. See Pham, 463 F.3d at 1241 (affirming district court’s application of dangerous weapons
enhancement after police seized unloaded gun at co-conspirator’s residence). Moreover, at the
sentencing hearing, counsel for the government stated that he had found a report confirming that
at least one of the guns seized was loaded. Although it is not clear to what report counsel was
referring, Medina’s attorney acknowledged seeing the report and stated he did not “have any
reason to disbelieve the contents of that report.” Sentencing Hr’g Tr. at 24 (Doc. 90) (“Doc.”
refers to the docket entry in the district court record in this case.) On appeal, Medina argues that
this report is hearsay, but we have repeatedly concluded that “reliable hearsay can be considered
during sentencing.” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001). And
Medina’s counsel acknowledged that he had no reason to think the report unreliable. Indeed,
speaking more broadly, Medina provides no reason to believe that this gun, or any other seized
by law enforcement officials, was not loaded.
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overall trafficking conspiracy. See United States v. Fields, 408 F.3d 1356, 1359
(11th Cir. 2005) (evidence that firearms were present at locations where drugs
were sold supported the conclusion that possession of the firearms was in
furtherance of the drug conspiracy). Moreover, given that the conspiracy itself
involved trafficking large amounts of valuable narcotics and proceeds from drug
sales, it is reasonably foreseeable that Medina’s co-conspirators “felt the need to
protect their inventory and proceeds.” Id.; see also Pham, 463 F.3d at 1246 (“[W]e
have found it reasonably foreseeable that a co-conspirator would possess a firearm
where the conspiracy involved trafficking in lucrative and illegal drugs.”). “In
light of the vastness of the conspiracy and the large amount of drugs and money
being exchanged in this case, the district court did not clearly err by finding that it
was reasonably foreseeable that a firearm would be possessed by a co-conspirator.”
Pham, 463 F.3d at 1246.
Medina also argues that the district court’s application of the enhancement
was inappropriate because he did not plead guilty to any firearms offense. But this
argument “misperceives the distinction between a sentence and a sentence
enhancement.” United States v. Martinez, 924 F.2d 209, 211 (11th Cir. 1991)
(internal quotation marks omitted). In deciding whether to apply a sentencing
enhancement, a district court is permitted “to consider relevant conduct for which
the defendant was neither charged nor convicted, so long as proof of that conduct
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is supported by reasonable indicia of reliability.” Id. And Medina never argues
that the evidence on which the district court relied when sentencing him was
unreliable. In sum, we see no clear error in the district court’s application of a
dangerous-weapons enhancement to the calculation of Medina’s guidelines range.
B. Minor Role Designation
Medina contends that the district court should have granted him a minor role
designation when calculating his guidelines range. A district court’s determination
that the defendant is not entitled to a reduction for a minor role in the offense is a
finding of fact, reviewed only for clear error. United States v. Rodriguez De
Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant bears the
burden of establishing his qualification for a minor role reduction by a
preponderance of the evidence. United States v. Alvarez-Coria, 447 F.3d 1340,
1343 (11th Cir. 2006).
A defendant may receive a two-level reduction “[i]f the defendant was a
minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b). The
determination of whether to apply a mitigating role adjustment “is heavily
dependent upon the facts of the particular case.” Id. § 3B1.2, comment. (n.3). The
two-level minor role adjustment “applies to a defendant . . . who is less culpable
than most other participants in the criminal activity, but whose role could not be
described as minimal.” Id. § 3B1.2, comment. (n.5).
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In determining whether to grant a minor role reduction, “(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.” Alvarez-
Coria, 447 F.3d at 1343. “[A] defendant is not automatically entitled to a minor
role adjustment merely because [he] was somewhat less culpable than the other
discernable participants.” United States v. Bernal-Benitez, 594 F.3d 1303, 1320-21
(11th Cir. 2010) (internal quotation marks omitted).
The district court did not clearly err in denying Medina a minor role
reduction. Medina contends that a minor role designation is appropriate because
he operated exclusively as a courier and was uninvolved in the broader aspects of
the trafficking conspiracy. But our precedent is clear that “courier status in and of
itself is not dispositive of whether a defendant is entitled to . . . a downward
adjustment for role in the offense.” De Varon, 175 F.3d at 942. And indeed, when
looking beyond his title as a “courier” it becomes clear that Medina played more
than a minor role in the trafficking enterprise. He worked directly for and
extensively with Ramirez, one of the leaders of the conspiracy—a fact that
supports the district court’s denial of his request for a minor role designation. See
id. (a defendant’s “status and assigned tasks” are factors properly considered in
deciding whether to grant a minor role reduction). The district court found that
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Medina “tucked right in underneath [Ramirez] in the hierarchy.” Sentencing Hr’g
Tr. at 28 (Doc. 90).2 We cannot say this finding of fact was clearly erroneous,
especially since Medina has presented no reason for us to question it. In addition
to his status within the conspiracy, Medina transported hundreds of kilograms of
narcotics and millions of dollars in drug proceeds for the trafficking organization,
which further supports the district court’s denial of a minor role designation. See
De Varon, 175 F.3d at 943 (“[T]he amount of drugs in a courier’s possession
. . . may be the best indication of the magnitude of the courier’s participation in the
criminal enterprise . . . .”).
Nor does Medina ever demonstrate that he played a minor role in relation to
his co-conspirators. He asserts that his role was comparable to that of Hernandez,
who received a minimal role designation. But Hernandez acted as a courier on far
fewer occasions than Medina and had little understanding of the scope of the
broader drug trafficking conspiracy. And beyond identifying Hernandez as having
performed a comparable role, Medina does nothing to show that he is “less
culpable than most other participants” in the conspiracy. U.S.S.G. § 3B1.2,
comment. (n.5). We thus agree with the district court that the facts show Medina’s
base offense level was properly calculated based on the conduct attributable to him
and that he is not entitled to a minor role reduction.
2
“Doc.” refers to the docket entry in the district court record in this case.
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C. Reasonableness of Medina’s Sentence
Medina’s final contention is that his sentence is substantively unreasonable.
We review the reasonableness of a sentence under a deferential abuse of discretion
standard. 3 Gall v. United States, 552 U.S. 38, 51 (2007). “[I]t is only the rare
sentence that will be substantively unreasonable.” United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015) (internal quotation marks omitted). Where,
as here, a sentence is within the guidelines range, we ordinarily expect it to be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). That a
sentence is below the statutory maximum is a factor favoring its reasonableness.
See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). The party
challenging the sentence bears the burden of establishing that the sentence is
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
In reviewing the reasonableness of a sentence, we first ensure that the
district court committed no significant procedural error, and then we examine
whether the sentence was substantively unreasonable based on the totality of the
circumstances. Gall, 552 U.S. at 51. As Medina does not contend that the district
3
The government contends that Medina’s challenge to the substantive reasonableness of
his sentence is subject to plain error review because he did not raise an objection to the
reasonableness of his sentence before the district court. But to our knowledge, we have yet to
decide in a published opinion whether we review the substantive reasonableness of a defendant’s
sentence for plain error if the defendant failed to raise any objection before the district court.
Regardless, we need not decide whether plain error review would apply in this case because, as
explained below, Medina’s sentence is reasonable under the abuse of discretion standard.
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court committed a procedural error, we need only consider whether his sentence
was substantively unreasonable.
Under 18 U.S.C. § 3553(a), the district court must impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in
§ 3553(a)(2), including promoting respect for the law, deterring criminal conduct,
and protecting the public from the defendant’s future criminal conduct. See 18
U.S.C. § 3553(a)(2). The court must also consider the nature and circumstances of
the offense, the history and characteristics of the defendant, the kinds of sentences
available, the applicable guidelines range, the pertinent policy statements of the
Sentencing Commission, the need to avoid unwarranted sentencing disparities, and
the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
A district court abuses its discretion and imposes a substantively
unreasonable sentence if it “(1) fails to afford consideration to relevant factors that
were due significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in considering the proper
factors.” Rosales-Bruno, 789 F.3d at 1256 (internal quotation marks omitted).
Thus, deciding whether a district court has imposed a substantively unreasonable
sentence involves an inquiry into whether the statutory factors in 18 U.S.C.
§ 3553(a) support the sentence. See Gonzalez, 550 F.3d at 1324. “The weight to
be accorded any given § 3553(a) factor is a matter committed to the sound
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discretion of the district court . . . .” United States v. Clay, 483 F.3d 739, 743 (11th
Cir. 2007) (internal quotation marks omitted).
Medina argues that his sentence was substantially harsher than that received
by his co-defendant Hernandez. He reasons that this demonstrates an unwarranted
sentencing disparity between the sentence he received and what Hernandez
received. While it is true 18 U.S.C. § 3553(a)(6) counsels courts to avoid
unwarranted disparities when sentencing defendants, “[d]isparity between the
sentences imposed on codefendants is generally not an appropriate basis for relief
on appeal.” United States v. Regueiro, 240 F.3d 1321, 1325-26 (11th Cir. 2001).
Section 3553(a)(6) “seeks only to avoid unwarranted sentencing disparities.”
United States v. Statham, 581 F.3d 548, 556 (7th Cir. 2009) (emphasis added)
(internal quotation marks omitted). Thus, “a defendant is not entitled to a lighter
sentence merely because his co-defendants received lighter sentences.” United
States v. Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (internal quotation marks
omitted). This is because “adjust[ing] the sentence of a co-defendant in order to
cure an apparently unjustified disparity between defendants in an individual case
[would] simply create another, wholly unwarranted disparity between the
defendant receiving the adjustment and all similar offenders in other cases.”
United States v. Chotas, 968 F.2d 1193, 1198 (11th Cir. 1992).
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Even were we to compare Medina’s sentence to that of Hernandez, Medina
has failed to establish that the discrepancy between the sentence he received and
the sentence Hernandez received is unwarranted. Medina worked directly under
Ramirez, one of the leaders of the conspiracy. And in his role as courier, he
transported hundreds of kilograms of narcotics and smuggled millions of dollars in
drug proceeds. In contrast, Hernandez was recruited into the conspiracy by family
members and had little-to-no understanding of the broader trafficking conspiracy.
Although she did transport drug proceeds, she only appears to have done so on
approximately three occasions. Given the differences between Hernandez’s
conduct and Medina’s conduct, and Medina’s failure to identify any comparable
criminal defendant who received a materially different sentence, we can identify
no abuse of discretion in the district court’s conclusion that Medina’s conduct
warranted a harsher sentence.
Even were we to conclude there was an unwarranted disparity between
Medina’s sentence and that of Hernandez, we would nonetheless uphold Medina’s
sentence as reasonable because he has failed to demonstrate that this disparity
outweighed the other § 3553(a) factors. The need to avoid sentencing disparities is
only one of several factors district courts consider when sentencing a defendant.
See 18 U.S.C. 3553(a). And district courts are entitled to decide the weight
accorded to each factor. Clay, 483 F.3d at 743. Aside from pointing to
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Hernandez’s sentence, Medina presents no reason to believe that his sentence is
substantively unreasonable given all of the other § 3553(a) factors. If anything, the
fact that his sentence is within the guidelines range counsels in favor of its
reasonableness, as does the fact that his sentence is below the statutory maximum.
See Hunt, 526 F.3d at 746; see also Gonzalez, 550 F.3d at 1324. As such, Medina
has not satisfied his burden of showing that his sentence is substantively
unreasonable. See Tome, 611 F.3d at 1378.
III. CONCLUSION
Medina has failed to demonstrate the district court committed a clear error in
applying a dangerous-weapons enhancement to the calculation of his guidelines
range or denying him a minor role reduction. He has also failed to show that the
district court abused its discretion by imposing a substantively unreasonable
sentence. Accordingly, we affirm.
AFFIRMED.
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United States v. Luis Fernando Mancillas Medina
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2016-07-20
Citations: 656 F. App'x 975
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