United States v. Flavio Suarez Carvajal , 371 F. App'x 42 ( 2010 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    MAR 30, 2010
    No. 09-12297                       JOHN LEY
    Non-Argument Calendar                    CLERK
    ________________________
    D. C. Docket No. 08-00458-CR-T-33-TBM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    FLAVIO SUAREZ CARVAJAL,
    a.k.a. Flavio Suarez,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (March 30, 2010)
    Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
    PER CURIAM:
    Defendant appeals his 135-month sentence for conspiracy to possess with
    intent to distribute five kilograms or more of cocaine while on board a vessel and
    for aiding and abetting to possess the same. Defendant contends that he should be
    sentenced as a minor participant and that the District Court made two errors in
    applying the sentencing guidelines. We see no reversible error; we affirm.
    We review a district court's finding of fact for clear error. United States v.
    Boyd, 
    291 F.3d 1274
    , 1277 (11th Cir. 2002). We review a district court's
    sentencing determination for an abuse of discretion. Gall v. United States, 
    128 S. Ct. 586
    , 597 (2007).
    In October 2008, Defendant was on a go-fast vessel in international waters
    off Colombia's coast. The United States Coast Guard saw the vessel and moved to
    intercept because the vessel had no indication of nationality or home port and was
    laden with multiple bales of cocaine. During the ensuing chase, the go-fast vessel's
    crew began to throw out cocaine and fuel. The Coast Guard disabled the vessel's
    engines with gun fire and arrested the crew. Defendant, a crew member, pleaded
    guilty.
    At sentencing, Defendant argued that he was entitled to a downward
    adjustment in his offense level under USSG § 3B1.2(b) because he had a minor
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    role in the crime. The District Court rejected this argument and calculated a
    guideline range of 135-168 months. After considering the section 3553(a) factors,
    the District Court imposed a 135-month sentence.
    We review a District Court's sentencing decision under a two-step process.
    We first look to see if the District Court committed a significant procedural error.
    If the sentence is procedurally sound, we then look to see if it is substantively
    reasonable. See Gall v. United States, 
    128 S. Ct. 586
    , 597 (2007).
    Defendant first argues that he is entitled to a downward adjustment in
    offense level under section 3B1.2(b) and that the District Court committed
    procedural error by not granting the downward adjustment. Defendant bears the
    burden of proof, by a preponderance of the evidence, that he had a minor role.
    United States v. De Varon, 
    175 F.3d 930
    , 939 (11th Cir. 1999)(en banc). In
    evaluating the Defendant's story, "the district court has considerable discretion in
    making this fact-intensive determination." United States v. Boyd, 
    291 F.3d 1274
    ,
    1277-78 (11th Cir. 2002).
    A district court first "measure[s] the defendant's role against the relevant
    conduct for which [he] was held accountable at sentencing." De Varon, 
    175 F.3d at 945
    . A district court may then compare a defendant's role to other participants
    involved in the relevant conduct. 
    Id.
     If Defendant's relevant conduct is the same
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    as his actual conduct, he "cannot prove that [he] is entitled to a minor role
    adjustment simply by pointing to some broader criminal scheme in which [he] was
    a minor participant but for which [he] was not held accountable." Id at 941.
    Defendant contends that his role in the enterprise was limited: that he was
    working as part of a larger drug smuggling operation, that he had no ownership
    interest in the drugs, and that he was not an organizer of the operation. Defendant
    was not charged with having an ownership interest in the drugs, with organizing
    the smuggling, or involvement in a larger conspiracy. Defendant was charged,
    convicted, and sentenced for importing 740 kilograms of cocaine. Defendant does
    not contend that he had a minor role compared to the other crew members. The
    District Court was within its discretion to refuse a minor role adjustment.
    Defendant's second argument is that his sentence is substantively
    unreasonable despite the District Court's sentencing him to the lowest end of the
    guideline range.
    Defendant contends that he presented several reasons to the District Court
    that he deserved a 70-month sentence and that the District Court did not address
    explicitly each issue the Defendant presented, preventing us from conducting a
    meaningful appellate review. This alleged failure, according to Defendant, is
    sufficient for us to reverse the District Court's ruling as substantively unreasonable.
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    When the District Court imposed the sentence, it stated that it had
    considered the advisory guidelines as well as the factors set forth in section
    3553(a). A district court need not discuss every factor explicitly. United States v.
    Scott, 
    426 F.3d 1324
    ,1329 (11th Cir. 2005). A sentence at the low end of the
    recommended guidelines is ordinarily expected to be reasonable. United States v.
    Talley, 
    431 F.3d 784
    , 788 (11th Cir. 2005). The District Court has broad
    discretion to decide which section 3553(a) factors are compelling, and Defendant
    presented no information that would lead us to disturb the District Court's decision.
    AFFIRMED.
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