United States Court of Appeals,
Eleventh Circuit.
No. 95-4783
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Fredinardo FERNANDEZ, Defendant-Appellant.
Aug. 28, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-6179-CR-UUB), Ursula Ungaro-Benages,
Judge.
Before EDMONDSON, COX and BARKETT, Circuit Judges.
PER CURIAM:
Fredinardo Fernandez appeals his 87-month sentence for
conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 846 (1994).
Fernandez was convicted on his plea of guilty, and was
sentenced based on facts contained in the Presentence Investigation
Report ("PSI"). According to the PSI, Fernandez's arrest was the
result of a sting operation conducted by the Drug Enforcement
Administration ("DEA"). The DEA received information about a load
of cocaine that would be transported from Columbia to Miami, and
successfully intercepted 308 kilograms of cocaine. An individual
cooperating with the DEA negotiated with Ezequiel Ince to arrange
delivery of the cocaine to Ince in Miami. The negotiations
involved several meetings and telephone calls. Fernandez was
present at one of these meetings, when the cooperating individual
told Ince that 308 kilograms of cocaine would be released if Ince
could come up with $50,000 to pay for transporting it. Fernandez
told the cooperating individual that if he was given 25 kilograms
of the cocaine to sell, he could have the money within two hours.
At sentencing, the district court set Fernandez's base offense
level at 34, based on information in the PSI that Fernandez's
involvement in the conspiracy was limited to the proposed sale of
25 kilograms of cocaine. See United States Sentencing Guidelines,
Guidelines Manual, § 2D1.1(a)(3) & (c) (Nov. 1994). Also in
accordance with the PSI, the court adjusted Fernandez's offense
level downward two levels under U.S.S.G. § 3B1.2(b) for his minor
role in the offense.
Fernandez argued in the district court, and now argues on
appeal, that his role in the offense was "minimal," entitling him
to a four-level reduction under U.S.S.G. § 3B1.2(b). Fernandez
contends that the relevant conspiracy for determining his role in
the offense is the 308-kilogram conspiracy, rather than the 25-
kilogram conspiracy, and that his role in the 308-kilogram
conspiracy was minimal. Thus, he argues, the district court erred
in finding that his role in the offense was minor, and that he was
entitled only to a two-level reduction under § 3B1.2(a).
The Government responds by arguing that the district court
correctly relied on Application Note 4 to § 3B1.2 in determining
whether Fernandez's role in the offense was "minor" or "minimal."
Application Note 4 provides:
If a defendant has received a lower offense level by virtue of
being convicted of an offense significantly less serious than
warranted by his actual criminal conduct, a reduction for a
mitigating role under this section ordinarily is not warranted
because such defendant is not substantially less culpable than
a defendant whose only conduct involved the less serious
offense.
U.S.S.G. § 3B1.2 comment. (n. 4). The Government argues that the
relevant offense for determining whether Fernandez has a minor or
minimal role is the 25-kilogram conspiracy on which Fernandez's
offense level was based, rather than the 308-kilogram conspiracy
for which his co-conspirator was held responsible.
While Application Note 4 does not apply to this case, its
logic controls the result we reach. The note does not apply
because Fernandez was convicted of conspiracy, and his criminal
conduct would not support a conviction for any more serious
offense. But the logic of Application Note 4 does apply, because
Fernandez is not substantially less culpable than other defendants
whose conduct involved a 25-kilogram conspiracy. See United States
v. Lampkins, 47 F.3d 175, 181 n. 3 (7th Cir.1995). We hold that
the conspiracy on which a defendant's base offense level is founded
is the relevant conspiracy for determining role in the offense.
Id. at 180-81; United States v. Atanda, 60 F.3d 196, 198-99 (5th
Cir.1995). Thus, the district court correctly determined
Fernandez's role in the offense by reference to the 25-kilogram
conspiracy. Furthermore, the district court's finding that
Fernandez did not have a minimal role in the 25-kilogram conspiracy
was not clearly erroneous. See United States v. Camargo-Vergara,
57 F.3d 993, 997 (11th Cir.1995) (sentencing court's determination
of defendant's role in offense is factual finding reviewed for
clear error).
AFFIRMED.