United States v. Fernando Alvarez , 265 F. App'x 830 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 19, 2008
THOMAS K. KAHN
No. 07-11766
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-80138-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO ALVAREZ,
a.k.a. Little Fer,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 19, 2008)
Before BARKETT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Fernando Alvarez appeals his 120-month sentence, imposed after he pled
guilty to conspiracy to possess with intent to distribute ecstasy, in violation of 21
U.S.C. §§ 846 and 841(a)(1), (b)(1)(C). After review, we affirm.
During the course of a police investigation focused primarily on Joel
McDermott, a multi-substance trafficker, agents intercepted more than a hundred
calls between McDermott and Alvarez. In these calls, Alvarez discussed quantities
of narcotics being picked up and delivered and monies owed to McDermott.
Agents learned that, beginning in early 2003, McDermott supplied ecstasy pills to
Alvarez for Alvarez to sell. At sentencing, the parties agreed that Alvarez was
responsible for 26,000 ecstasy pills during the conspiracy.
A. Mitigating-Role Adjustment
On appeal Alvarez argues that the district court clearly erred in denying him
a mitigating-role adjustment pursuant to U.S.S.G. § 3B1.2(b).1
A mitigating-role adjustment applies to defendants who are “substantially
less culpable than the average participant.” U.S.S.G. § 3B1.2 cmt. n.3. If the
defendant was a minor participant in the criminal activity, the district court
decreases the offense level by two levels. U.S.S.G. § 3B1.2(b). A minor
participant is one “who is less culpable than most other participants, but whose role
1
We review for clear error the district court’s determination of whether a defendant
qualifies for a mitigating-role reduction. United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir.
2002).
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could not be described as minimal.” Id. § 3B1.2 cmt. n.5. If the defendant was a
minimal participant in the criminal activity, the district court decreases the offense
level by four levels. Id. § 3B1.2(a). A minimal participant is one who “plays a
minimal role in concerted activity” and is “plainly among the least culpable of
those involved in the conduct of a group.” Id. § 3B1.2 cmt. n.4. The defendant has
the burden to establish his role in the offense by a preponderance of the evidence.
United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc).
In determining whether a mitigating-role reduction applies, the district court
considers two principles: (1) the defendant’s role in the offense compared to the
relevant conduct attributed to him in calculating his base offense level; and (2) the
defendant’s role compared to that of other participants in the offense. Id. at 940-
45. “[I]n the drug courier context . . . the amount of drugs imported is a material
consideration in assessing a defendant’s role in [his] relevant conduct . . . . [and]
may be dispositive – in and of itself – in the extreme case.” Id. at 943.
Additionally, “when a drug courier’s relevant conduct is limited to [his] own act of
importation, a district court may legitimately conclude that the courier played an
important or essential role in the importation of those drugs.” Id. at 942-43.
Here, Alvarez’s base offense level of 34 was determined, pursuant to
U.S.S.G. § 2D1.1(c)(3), based on the 26,000 ecstasy pills he agrees he obtained
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from McDermott to sell.2 Thus, Alvarez was held accountable only for the amount
of drugs with which he was personally involved, not for the larger drug conspiracy
operated by McDermott. Also, we note, as did the district court, that the amount of
ecstasy pills involved was substantial. Because Alvarez’s relevant conduct was
limited to his own activity, the district court did not clearly err in concluding that
Alvarez played an important role in the plan to distribute those ecstasy pills.
Furthermore, we cannot say that Alvarez was substantially less culpable than
the other identifiable participants in the conspiracy to distribute the ecstasy pills.
At sentencing, Alvarez asserted that he worked for McDermott as a middleman,
obtaining pills from McDermott and taking them to a third person, who would sell
them and give the money to Alvarez to take back to McDermott. The fact that
Alvarez may be less culpable than McDermott is not determinative, given that it is
possible for a conspiracy to have no minor or minimal participants. See id. at 944.
Based on the content of Alvarez’s numerous telephone conversations with
McDermott, the district court found that Alvarez’s involvement was extensive and
that Alvarez was an active participant in the ecstasy conspiracy. The district court
2
Alvarez now claims that his actual and relevant conduct were not the same because he
did not actually sell the entire 26,000 pills of ecstasy, but returned some of them to co-
conspirator McDermott. Alvarez pled guilty to conspiracy to possess with intent to distribute
ecstasy, not distribution of ecstasy. Thus, Alvarez need not have actually sold all 26,000 pills
for those pills to be counted as part of his actual conduct. Alvarez does not dispute that he
obtained those pills from McDermott to sell, even if in the end he did not sell all of them.
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also found that Alvarez had some discretion in setting the price for the ecstasy
pills.
Alvarez’s emphasis on his limited involvement in McDermott’s larger drug
conspiracy, which involved cocaine as well as ecstasy, is unavailing because
Alvarez was held accountable only for the ecstasy pills he personally handled. See
id. (explaining that the district court should compare the defendant’s role only to
the other identifiable participants in the relevant conduct and that “[t]he conduct of
participants in any larger criminal conspiracy is irrelevant”). Accordingly, the
district court did not clearly err in denying Alvarez’s request for a mitigating-role
reduction.
B. Criminal History Score
Alvarez also argues that the district court miscalculated his criminal history
score by assigning two points for his 2001 aggravated battery conviction.3
Under U.S.S.G. § 4A1.1(b), two points are added for each prior sentence of
imprisonment of at least 60 days not counted in § 4A1.1(a). Further, where a prior
sentence of imprisonment resulted from a revocation of probation, U.S.S.G.
§ 4A1.2(k) applies. U.S.S.G. § 4A1.1 cmt. n.2. Section 4A1.2(k)(1) states, “[i]n
3
We review a district court’s factual findings for clear error and its application of the
sentencing guidelines to those facts de novo. United States v. Kinard, 472 F.3d 1294, 1297 n.3
(11th Cir. 2006).
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the case of a prior revocation of probation. . . add the original term of
imprisonment to any term of imprisonment imposed upon revocation. The
resulting total is used to compute the criminal history points for § 4A1.1(a), (b), or
(c), as applicable.”
In 2001, Alvarez pled guilty in Florida state court to aggravated battery. He
was sentenced to ten years’ probation, but no jail time. However, in 2004, Alvarez
violated the terms of his probation. As a result, the state court modified his
probation sentence and imposed a 159-day imprisonment sentence, time served.
Alvarez argues that his 159-day sentence, imposed after he violated his probation,
was a “modification” of his probation rather than a revocation, and thus his 159-
day sentence should not be counted in determining the criminal history points for
his aggravated battery offense.
Alvarez’s argument is foreclosed by United States v. Glover, 154 F.3d 1291,
1294 (11th Cir. 1998). In Glover, the defendant, like Alvarez, violated the terms of
his probation, which resulted in a modification of his probation that included a 90-
day term of imprisonment. Glover, 154 F.3d at 1293. Glover argued that his
sentence resulting from a modification of probation, rather than a revocation, could
not be counted under § 4A1.1(k)(1). Id. at 1293-94. This Court concluded that
“§ 4A1.2(k)(1) contemplates that, in calculating a defendant’s total sentence of
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imprisonment for a particular offense, the district court will aggregate any term of
imprisonment imposed because of a probation violation with the defendant’s
original sentence of imprisonment, if any, for that offense.” Id. at 1294 (emphasis
added). Furthermore, this Court explained that “‘the finding of a probation
violation coupled with a time-served imprisonment sentence and a resentencing to
probation constitutes a “revocation of probation” under section 4A1.2(k)(1).’” Id.
at 1294 (quoting with approval United States v. Reed, 94 F.3d 341, 345 (7th Cir.
1996)).
Under Glover, the district court properly considered Alvarez’s 159-day
sentence (imposed after he violated his probation) as a sentence of imprisonment of
at least sixty days under § 4A1.1(b). Thus, the district court properly added two
criminal history points pursuant to U.S.S.G. §§ 4A1.1(b) and 4A1.2(k) for his 2001
aggravated battery conviction.
AFFIRMED.
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