United States v. Alejandrino Lozano-Ramirez , 294 F. App'x 548 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 25, 2008
No. 07-12471
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00465-CR-T-24-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRINO LOZANO-RAMIREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 25, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Alejandrino Lozano-Ramirez appeals his 135-month sentence for
conspiracy to possess, and possession with intent to distribute 5 kilograms or more
of cocaine while aboard a vessel subject to United States jurisdiction, in violation
of 21 U.S.C. § 960(b)(1)(B)(ii), 46 U.S.C. §§ 70503(a)(1), 70506(a), (b). He
argues the district court erred in denying him a minor role reduction and that his
sentence was unreasonable.
Lozano first argues the district court erred in not granting him a mitigating
role adjustment. He argues other individuals in the conspiracy had far greater
roles than his role, and he did not plan the crime. He claims he was merely a
courier and the lowest ranking crew member on the boat. He further maintains
that he was not paid a commission for transporting the drugs, nor did he own the
drugs, and the district court did not consider his role compared to others on the
vessel. He argues other similarly situated defendants received mitigating role
reductions, and the district court did not consider this fact. He argues that in the
Middle District of Florida, the length of a defendant’s sentence is based more on
which judge imposes the sentence than an analysis of the defendant’s role and the
facts of the case, and the district court ignored the disparate sentencing of similar
defendants. He argues the district court improperly placed the burden on him to
prove he deserved a lesser role. He concludes that by starting the sentencing
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calculations at that of an “average” participant, the district court aggravated his
role without making the necessary aggravating role findings.
“[We have] long and repeatedly held that a district court’s determination of
a defendant’s role in the offense is a finding of fact to be reviewed only for clear
error.” United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).
The defendant bears the burden of proving the mitigating role in the offense
by a preponderance of the evidence. Id. at 939. “A trial court’s choice between
‘two permissible views of the evidence’ is the very essence of the clear error
standard of review.” Id. at 945. The district court does not need to make specific
subsidiary factual findings, and, as long as the record supports the decision and the
district court resolves any disputed factual issues, a final determination is
sufficient. Id. at 939-40. The burden is on the defendant to offer evidence at
sentencing on an issue that would reduce his offense level, and if he fails to do so,
and other evidence does not demonstrate entitlement, we will affirm the district
court finding. See United States v. Wilson, 884 F.2d 1355, 1356-57 (11th Cir.
1989) (holding defendant failed to meet burden for acceptance of responsibility
reduction where he objected in the PSI, but only made arguments at sentencing
without offering evidence).
Under U.S.S.G. § 3B1.2, the district court may reduce the offense level by
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two points if a defendant is a minor participant in the offense. A minor participant
means any participant “who is less culpable than most other participants, but
whose role could not be described as minimal.” U.S.S.G. § 3B1.2, cmt. n.5. The
district court uses a two-part test to determine if a defendant is a minor participant.
First, “the district court must measure the defendant’s role against the relevant
conduct for which [he] was held accountable at sentencing.” De Varon, 175 F.3d
at 945. Relevant conduct includes that “conduct attributed to the defendant in
calculating [his] base offense level.” Id. at 941. “[I]n many cases this method of
analysis will be dispositive.” Id. at 945. “In the drug courier context, . . . the
amount of drugs imported is a material consideration in assessing a defendant’s
role. . . . [and] may be dispositive—in and of itself—in the extreme case.” Id. at
943. Second, “the district court may also measure the defendant’s role against the
other participants, to the extent that they are discernable, in that relevant conduct.”
Id. at 945. A defendant, however, “is not automatically entitled to a minor role
adjustment merely because [he] was somewhat less culpable than the other
discernable participants. . . . [he must be] less culpable than most other
participants in [his] relevant conduct.” Id. at 944. A drug courier may or may not
qualify for a minor role reduction. Id. at 942.
The district court did not clearly err in denying Lozano a minor role
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reduction. In light of the substantial amount of drugs involved and Lozano’s role
as crew member who, among other things, tossed bales of cocaine overboard after
the Coast Guard ordered him to stop, we cannot conclude that Lozano’s
participation was minor. Lozano also failed to present evidence that he was less
culpable than most of the other crew members. Additionally, the sentences of
other defendants in other cases had no bearing on whether Lozano had a minor
role in the relevant conduct.
Lozano also argues the district court’s sentence was unreasonable. Lozano
claims he only joined the conspiracy to provide support for his family, who live in
poverty without government assistance. Lozano maintains that he will leave the
country after the end of his prison term. He argues that the district court did not
consider that Lozano was from Colombia where there are no government
assistance programs, nor did it give meaningful consideration to his argument that
he was unlikely to be a recidivist. He claims that the court should have considered
Lozano’s individual situation, and a lower sentence would have complied with the
purposes of § 3553. Additionally, he maintains that a lower sentence was needed
to avoid disparity with the sentences of similar defendants.
We review the final sentence imposed by the district court for
reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007) (per
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curiam). Recently, the Supreme Court clarified that the reasonableness standard
means review of sentences for abuse of discretion. Gall v. United States, 552 U.S.
__, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007).
The district court must impose a sentence that is both procedurally and
substantively reasonable. Gall, 552 U.S. at __, 128 S. Ct. at 597. The Supreme
Court has explained that a sentence would be procedurally unreasonable if the
district court improperly calculated the guideline imprisonment range, treated the
Guidelines as mandatory, failed to consider the appropriate statutory factors, based
the sentence on clearly erroneous facts, or failed to adequately explain its
reasoning. Id. If the district court made no procedural errors, then we review the
substantive reasonableness of the sentence imposed to determine whether the
sentence is supported by the 18 U.S.C. § 3553(a) factors. Id. at __, 128 S.
Ct. at 600. 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.
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United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam).
There is a “range of reasonable sentences from which the district court may
choose.” Id. at 788. “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in light of both [the] record and the
factors in section 3553(a).” Id. The weight given to particular sentencing factors
is committed to the sound discretion of the district court. United States v. Clay,
483 F.3d 739, 743 (11th Cir. 2007).
We have held that a district court is not required to state that it has explicitly
considered each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). In addition, “when the district court imposes a sentence within
the advisory Guidelines range, we ordinarily will expect that choice to be a
reasonable one.” Talley, 431 F.3d at 788.
As indicated above, Lozano only argues that the district court committed
substantive error. Upon review of the record, we conclude that the district court
did not abuse its discretion when it sentenced Lozano to 135 months’
imprisonment. The court considered Lozano’s extreme poverty and his good
character. However, the sentence the district court imposed implicated a number
of other relevant factors, including the facts of the crime, the need for deterrence,
and the protection of the public. Lozano fails to show that his sentence was
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unreasonable, or that a significant disparity existed with similarly situated
defendants. The district court considered the § 3553 factors, and the final
sentence was the lowest recommended by the guidelines, well below the statutory
maximum of life imprisonment.
Upon review of the record and upon consideration of the briefs of the
parties, we find no reversible error.
AFFIRMED.
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