United States v. Juvencio Salinas Cruz , 171 F. App'x 269 ( 2006 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 05-14024                  MARCH 14, 2006
    Non-Argument Calendar            THOMAS K. KAHN
    CLERK
    ________________________
    D. C. Docket No. 04-00563-CR-T-23-MAP
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JUVENCIO SALINAS CRUZ,
    a.k.a. Juvencio Slinas Cruz,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (March 14, 2006)
    Before CARNES, BARKETT and PRYOR, Circuit Judges.
    PER CURIAM:
    Juvencio Salinas-Cruz appeals his 135-month sentence for possession with
    intent to distribute 5 kilograms or more of cocaine while aboard a vessel subject to
    the United States’s jurisdiction, in violation of 46 App. U.S.C. §§ 1903(a), (g); 
    18 U.S.C. § 2
    ; and 
    21 U.S.C. § 960
    (b)(1)(B)(ii), and conspiracy to possess with intent
    to distribute 5 kilograms or more of cocaine while aboard a vessel subject to the
    United States’s jurisdiction, in violation of 46 App. U.S.C. §§ 1903(a), (g), & (j),
    and 
    21 U.S.C. § 960
    (b)(1)(B)(ii). Salinas-Cruz first argues that he should have
    received a minor-role reduction pursuant to U.S.S.G. § 3B1.2 because he was less
    culpable than the other members of the conspiracy, and because U.S.S.G.
    § 2D1.1(a)(3) is designed to punish couriers of drugs less harshly than buyers and
    sellers. According to Salinas-Cruz, U.S.S.G. § 2D1.1(a)(3) challenges the validity
    of our ruling in United States v. De Varon, 
    175 F.3d 930
     (11th Cir. 1999) (en
    banc). Salinas-Crus also contends that the district court’s sentence was
    unreasonable. The government argues that we lack jurisdiction to consider the
    reasonableness of his sentence.
    I.
    As a preliminary issue, De Varon is still the guiding law in this Circuit, and
    we have repeatedly upheld it. See United States v. Boyd, 
    291 F.3d 1274
    , 1276-77
    (11th Cir. 2002). Moreover, the portion of the sentencing guidelines to which
    Salinas-Cruz refers, U.S.S.G. § 2D1.1(a)(3), requires a defendant to first qualify
    2
    for a minor-role reduction. See U.S.S.G. § 2D1.1(a)(3), U.S.S.G. Supp. App. C,
    Amend. 640. As the Sentencing Commission specifically adopted and affirmed De
    Varon’s analysis for qualification for a minor-role reduction, Salinas-Cruz’s
    arguments regarding the application of the guidelines and De Varon are meritless.
    U.S.S.G., App. C, Amend. 635.
    We have held that a district court’s determination of a defendant’s role in an
    offense is a finding of fact, to be reviewed for clear error. De Varon, 
    175 F.3d at 934
    . The guidelines allow a court to decrease a defendant’s offense level by two
    points if the court finds the defendant was a minor participant. U.S.S.G.
    § 3B1.2(b). A defendant who “is less culpable than most other participants, but
    whose role could not be described as minimal” is a minor participant. U.S.S.G.
    § 3B1.2, comment. (n.5). Under the requisite standards articulated in De Varon,
    we cannot say that the district court clearly erred in denying the downward
    departure here.
    II.
    In considering Salinas-Cruz’s reasonableness argument, we first note that we
    have subject-matter jurisdiction. See United States v. Martinez, No. 05-12706,
    slip op. at 999-1000 (11th Cir. Jan. 9, 2006). Sentences imposed under an advisory
    guidelines system are reviewed for unreasonableness. With regard to
    3
    reasonableness, we have stated that the district court must first correctly calculate
    the defendant’s guideline range, then, using the 
    18 U.S.C. § 3553
    (a) sentencing
    factors, the court can impose a more severe or more lenient sentence as long as it is
    reasonable. United States v. Crawford, 
    407 F.3d 1174
    , 1179 (11th Cir. 2005). The
    § 3553(a) factors include the available sentences, the applicable guideline range
    and policy statements, the nature and circumstances of the offense, and the need
    for the sentence to (1) reflect the seriousness of the offense, promote respect for the
    law, and provide just punishment for the offense, (2) afford adequate deterrence to
    criminal conduct, (3) protect the public from further crimes of the defendant, and
    (4) provide the defendant with needed correctional treatment. 
    18 U.S.C. § 3553
    (a).
    “[N]othing in Booker or elsewhere requires the district court to state on the record
    that it has explicitly considered each of the § 3553(a) factors or to discuss each of
    the § 3553(a) factors.” United States v. Scott, 
    426 F.3d 1324
    , 1329 (11th Cir.
    2005).
    “Review for reasonableness is deferential.” United States v. Talley,
    431 F.3d 784
    , 788 (11th Cir. 2005). “[T]he party who challenges the sentence bears the
    burden of establishing that the sentence is unreasonable in the light of both th[e]
    record and the factors in section 3553(a).” 
    Id.
     A sentence within the advisory
    guidelines range is not per se reasonable, but is expected to be reasonable. See id.
    4
    (“when the district court imposes a sentence within the advisory Guidelines range,
    we ordinarily will expect that choice to be a reasonable one.”). We have held that
    a district court’s statement that it had considered the § 3553(a) factors alone is
    sufficient in post-Booker sentences to indicate that it considered the factors, and
    concluded that the defendant’s sentence was reasonable because the district court
    accurately calculated the guideline range and the defendant’s sentence at the low
    end of the range reflected the court’s consideration of his evidence in mitigation.
    See Scott, 
    426 F.3d at 1330
    .
    In this case, the district court explicitly mentioned the § 3553(a) factors and
    accurately calculated the guideline range. Although, the district court noted that it
    believed the large quantity of cocaine on the boat justified a guidelines sentence, it
    sentenced Salinas-Cruz at the low end of the guidelines range. Based, upon this
    record, we cannot say that the sentence imposed was unreasonable.
    AFFIRMED.
    5
    

Document Info

Docket Number: 05-14024; D.C. Docket 04-00563-CR-T-23-MAP

Citation Numbers: 171 F. App'x 269

Judges: Barkett, Carnes, Per Curiam, Pryor

Filed Date: 3/14/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023