United States v. Rafael Jose Portillo-Marquez , 264 F. App'x 873 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 11, 2008
No. 07-13569 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00075-CR-T-26-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL JOSE PORTILLO-MARQUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 11, 2008)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Rafael Jose Portillo-Marquez appeals (1) the decision of the district court
denying him a minor-role reduction, pursuant to U.S.S.G. § 3B1.2(b), and (2) the
court’s low-end guideline-range sentence as substantively unreasonable. For the
reasons set forth below, we affirm.
Portillo-Marquez agreed to serve aboard a freighter that he knew was being
used to smuggle cocaine. The crew consisted of eight other members. The Coast
Guard discovered more than 10,000 kilograms of cocaine hidden on the vessel.
Portillo-Marquez pled guilty to one count of conspiracy to possess with intent to
distribute five kilograms or more of cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a),
(b) and 21 U.S.C. § 960(b)(1)(B)(ii), and one count of possessing with intent to
distribute five kilograms or more of cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a),
18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii). His total offense level was
reduced by five levels, after which his Guidelines range was calculated as 135–168
months’ imprisonment. After noting that it had consulted the advisory Guidelines
range and 18 U.S.C. § 3553(a) factors, the district court sentenced Portillo-
Marquez to 135 months’ imprisonment on both counts, to run concurrently.
I.
Portillo-Marquez first argues that he should have been granted a two-level
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reduction as a minor participant because (1) there was no evidence suggesting that
he knew the amount of drugs involved, (2) the relevant conduct that was attributed
to him was far greater than the role he actually played in the offense, and (3) he
was less culpable than other participants.
“[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. Rodriquez De
Varon, 175 F.3d 930, 937 (11th Cir. 1999). Further explaining this standard, we
have stated,
[A] trial court’s choice between ‘two permissible views of the
evidence’ is the very essence of the clear error standard of review. . . .
So long as the basis of the trial court’s decision is supported by the
record and does not involve a misapplication of a rule of law, we
believe that it will be rare for an appellate court to conclude that the
sentencing court’s determination is clearly erroneous.
Id. at 945 (citation omitted).
Section 3B1.2 of the Sentencing Guidelines provides for a two-level
decrease if the defendant was a minor participant in any criminal activity.
U.S.S.G. § 3B1.2. A defendant is a minor participant if he is less culpable than
most other participants, but his role cannot be described as minimal. Id. cmt. n.5.
“The defendant bears the burden of proving his minor role by a preponderance of
the evidence.” United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002).
In determining a defendant’s mitigating role in the offense, the district court
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first “must measure the defendant’s role against the relevant conduct for which [he]
was held accountable at sentencing,” and second, “may also measure the
defendant’s role against other participants, to the extent that they are discernable,
in that relevant conduct.” De Varon, 175 F.3d at 945. Where a drug courier’s
relevant conduct is limited to his own criminal act, a district court may legitimately
conclude that the courier played an important or essential role in that crime. See
id. at 942–43. Furthermore, “where the relevant conduct attributed to a defendant is
identical to [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.
Further, “the amount of drugs imported is a material consideration in assessing a
defendant’s role in [his] relevant conduct.” Id. at 943. As to the second prong,
“the district court must determine that the defendant was less culpable than most
other participants in [his] relevant conduct.” Id. at 944. Moreover, relative
culpability is not necessarily dispositive, as none of the participants may have
played a minor or minimal role. Id.The district court did not clearly err in denying Portillo-Marquez’s request
for a minor-role reduction to his offense level because he is being held accountable
only for the amount of drugs that are attributable to him personally, and none of
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the evidence suggests that he played a smaller role in the offense than any of his
co-conspirators, except the ship’s captain. Accordingly, we affirm as to this issue.
II.
Portillo-Marquez next argues that his sentence is unreasonable because the
district court only considered the amount of drugs involved in the offense, as
calculated through the Guideline range, and did not consider any of the other
§ 3553(a) factors. Moreover, he argues that the amount of cocaine is not related to
his culpability because he was only a member of the freighter’s crew.
We review a final sentence imposed by a district court for reasonableness.
United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007) (per curiam). In our
reasonableness review, moreover, we apply an abuse-of-discretion standard. Gall
v. United States, — U.S. —, 128 S. Ct. 586, 594, — L. Ed. 2d — (2007). When
reviewing the reasonableness of a sentence, we must consider the factors outlined
in § 3553(a) and the district court’s reasons for imposing the particular sentence.
See United States v. Williams, 435 F.3d 1350, 1354–55 (11th Cir. 2006) (per
curiam).
While the district court must consider the § 3553(a) factors, it is not required
to discuss each factor. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005)
(per curiam). Rather, “an acknowledgment by the district court that it has
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considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.” Id.Although we do not presume reasonable a sentence that is within the
guidelines range, United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007),
we have held that the use of the guidelines remains central to the sentencing
process, Talley, 431 F.3d at 787. Accordingly, “when the district court imposes a
sentence within the advisory Guidelines range, we ordinarily will expect that
choice to be a reasonable one.” Id. at 788. We have recognized that “there is a
range of reasonable sentences from which the district court may choose” and the
burden of establishing that the sentence is unreasonable in light of the record and
the § 3553(a) factors lies with the party challenging the sentence. Id.
The district court did not abuse its discretion when it imposed on Portillo-
Marquez a 135-month sentence because the record shows the district court did
consider the sentencing factors of § 3553(a), as it elicited input from Portillo-
Marquez on those factors and it acknowledged taking them into consideration.
Portillo-Marquez’s sentence at the low end of the advisory Guidelines range was
reasonable. Accordingly, we affirm as to this issue as well.
AFFIRMED.
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