United States v. Leonardo Garcia , 160 F. App'x 870 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 22, 2005
No. 05-13417
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20006-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO GARCIA,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 22, 2005)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Leonardo Garcia was indicted for importation of one kilogram or more of
heroin, in violation of 21 U.S.C. § 952, and possession with intent to distribute one
kilogram or more of heroin, in violation of 21 U.S.C. § 841. The indictment
specified that the amount of drugs involved was at least three kilograms of heroin.
Garcia agreed to plead guilty to both offenses without a written plea agreement.
At the change-of-plea hearing, the government proffered the following
evidence: Garcia arrived at Miami International Airport and was selected for
secondary customs inspection where officials found just over 3 kilograms of 35
percent pure heroin in his shoes. He had agreed to import the drugs to protect his
brother who was in debt to the drug dealers and because his family had been
threatened. He identified the men involved in the importation scheme by their
nicknames.
The probation officer prepared a presentence investigation report (“PSI”)
using the 2004 edition of the guidelines manual and assigning a base offense level
of 34 given the amount of drugs. Garcia met the requirements for the safety-valve
reduction under U.S.S.G. §§ 2D1.1(b)(7) and 5C1.2. that enabled him to avoid a
mandatory minimum sentence imposed by statute. The probation officer also
recommended a three-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. With a total offense level of 29 and a criminal history category I,
Garcia’s guidelines range was 87 to 108 months imprisonment.
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Garcia filed a single objection to the PSI, arguing that he was entitled to a
reduction for his minor role in the offense. In support of his request, Garcia cited
his reasons for importing the drugs, the low purity level of the drugs, and the fact
that he did not receive money in exchange for his actions.
At sentencing, the court initially was swayed by the low purity level of the
drugs, but when the government reminded the court about the quantity involved,
the court determined that a minor-role reduction was not appropriate. The court
further explained that it was “nonsense” for Garcia to believe that the drug dealers
would make this a one-time arrangement if the delivery was successful, and that
there were no extraordinary circumstances that persuaded the court to reduce the
sentence below the guidelines range. Considering the advisory guidelines range
and the sentencing factors in 18 U.S.C. § 3553(a), the court sentenced Garcia to 87
months imprisonment.
Garcia now appeals, challenging (a) the denial of the minor-role reduction;
(b) whether the application of Booker’s1 remedial holding to his sentences violate
due process and the Ex Post Facto Clause; and (c) whether his sentences are
reasonable.
I. Minor-Role Reduction
1
United States v. Booker, 543 U.S. –, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
3
We review a district court’s determination of a defendant’s entitlement to a
role reduction for clear error.2 United States v. Rodriguez De Varon, 175 F.3d 930,
938 (11th Cir. 1999) (en banc). The defendant has the burden of establishing his
role by a preponderance of the evidence. Id. at 939; see also United States v.
Boyd, 291 F.3d 1274, 1277-78 (11th Cir. 2002). A two-level reduction for playing
a minor role in the offense under U.S.S.G. § 3B1.2(b) is warranted if the defendant
is less culpable than most other participants, but his role could not be described as
minimal. U.S.S.G. § 3B1.2, comment. (n.3). Minor-role reductions are to be given
infrequently. United States v. Costales, 5 F.3d 480, 486 (11th Cir. 1993). The
district court’s determination concerning a role reduction is premised on a case-by-
case factual inquiry. U.S.S.G. § 3B1.2, comment. (backg’d).
In considering a possible role reduction, the district court first must assess
whether a defendant is a minor participant in the relevant conduct attributed to him.
De Varon, 175 F.3d at 941. If a defendant’s relevant conduct is identical to his
actual conduct, then he cannot establish that he was entitled to a minor-role
reduction. Id. Second, the district court may assess a defendant’s culpability as
compared to other participants in the relevant conduct, but is limited to considering
2
After Booker, the district court is still required to correctly calculate the guidelines range,
and the same standards of review apply. See United States v. Lee, 427 F.3d 881, 892 (11th Cir.
2005); see also United States v. Talley, No. 05-11353, manuscript op. at 7-8 (11th Cir. Dec. 2,
2005).
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only those participants who are identifiable by the evidence and who were involved
in the relevant conduct for which the defendant was convicted. Id. It is possible
that no one involved in the offense was a minor participant. Id.Here, Garcia did not satisfy his burden of showing either that his relevant
conduct warranted a reduction or that he was less culpable than other participants.
Garcia was held accountable for the amount of drugs he possessed,3 and he has not
shown any evidence that would warrant a reduction. Any minor role in the larger
drug-trafficking scheme is not relevant. De Varon, 175 F.3d at 944. Moreover,
although Garcia identified other participants, he did not meet his burden of proving
that these members were more culpable than he was.
Finally, Garcia’s focus on the amended version of U.S.S.G. § 2D1.1(a)(3) is
misplaced. Under that guideline section, a defendant’s offense level shall not be
more than thirty if the defendant receives a role reduction under § 3B1.2. Because
Garcia was not entitled to a role reduction,§ 2D1.1(a)(3) would not limit his base
offense level.
II. Ex Post Facto and Due Process
Garcia next asserts that, because he committed his offenses pre-Booker,
3
Because Garcia did not object to the PSI’s factual findings, those facts are deemed
admitted. United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.), cert. denied, 126 S.Ct. 551(2005).
5
application of Booker’s remedial holding to his sentencing violates the Ex Post
Facto Clause and due process.
When a defendant fails to object to an error before the district court, we
review the argument for plain error. United States v. Hall, 314 F.3d 565, 566
(11th Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct.
1770, 1776, 123 L.Ed.2d 508 (1993). “Plain error occurs where (1) there is an
error; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights in
that it was prejudicial and not harmless; and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Hall, 314 F.3d at 566;
Olano, 507 U.S. at 732.
Garcia’s argument is foreclosed by this court’s decision in United States v.
Duncan, 400 F.3d 1297, 1306-07 (11th Cir.),cert. denied, 126 S.Ct. 432 (2005),
holding that there are no ex post facto or due process concerns in the retroactive
application of Booker’s remedial holding to a defendant’s sentence.
III. Reasonableness
Finally, Garcia argues that his sentences were unreasonable under Booker
because the court failed to give meaningful consideration to the sentencing factors
in § 3553(a) and gave undue weight to the sentencing guidelines. He contends that
the court should have given more consideration to the facts of his case, such as the
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low purity level of the drugs, that he will be deported after release, and that he
committed the offense only as a response to threats against his family.
After Booker, we review a defendant’s sentence for reasonableness. United
States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005); United States v.
Crawford,407F.3d 1174, 1179 (11th Cir. 2005). Garcia bears the burden of
showing that his sentence was unreasonable. Talley, manuscript op. at 9.
Here, the sentence imposed was reasonable. First, the court imposed
sentence at the bottom of the guidelines range. Second, the court considered
Garcia’s reasons for committing the offenses, but determined that the amount of
drugs required a sentence within the guidelines range. In reaching this conclusion,
the court considered the sentencing factors of § 3553(a).4 Although the court did
not state the weight given to each factor, it was not required to do so. United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005); United States v. Robles, 408
F.3d 1324, 1328 (11th Cir. 2005).
Because the court considered the guidelines, the sentencing factors of
§ 3553(a), and the circumstances of the offense, we conclude that Garcia’s
4
These factors include the available sentences, the calculated guideline range, the nature
and circumstances of the offense, and the need for the sentence to reflect the seriousness of the
offense, promote respect for the law, and provide just punishment for the offense. 18 U.S.C. §
3553(a).
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sentence was reasonable. Scott, 426 F.3d at 1329-30.
Accordingly, for the foregoing reasons, we AFFIRM.
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