United States v. Orozco , 422 F. App'x 783 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 5, 2011
No. 10-13398 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 8:09-cr-00579-EAK-AEP-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff-Appellee,
versus
JESUS OROZCO,
lllllllllllllllllllllDefendant-Appellant.
_______________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 5, 2011)
Before CARNES, BARKETT and BLACK, Circuit Judges.
PER CURIAM:
Jesus Orozco appeals his convictions and 30-month concurrent sentences
after a jury found him guilty of conspiracy to transport 25 illegal aliens for the
purpose of commercial advantage or personal gain, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I), and transporting 5 illegal aliens for the purpose of
commercial advantage or personal gain, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii). Orozco worked for a man named Tony at Los Primos Taxi
Company. Orozco drove a taxi and, under Tony’s direction, transported illegal
aliens to locations around the country. In December 2009, the Florida Highway
Patrol pulled Orozco’s taxi over and discovered that he was transporting five
illegal aliens. Orozco later admitted to making other such trips in the past.
On appeal, Orozco first argues that the district court erred by denying his
motion to suppress on the ground that the police lacked probable cause to pull his
taxi over.1 However, Officer Jimmie Davis testified that he pulled Orozco over
because he was following the vehicle in front of him “more closely than [was]
reasonable and prudent” in light of “the speed of [the] vehicles and the traffic
upon, and the condition of, the highway,” in violation of Fla. Stat. § 316.0895.
The district court credited Davis’s testimony, which, contrary to Orozco’s
contention, is supported by the videotape introduced at the suppression hearing.
1
“In reviewing a district court’s denial of a motion to suppress, we review its findings of fact
for clear error and its application of law to those facts de novo. Further, when considering a ruling
on a motion to suppress, all facts are construed in the light most favorable to the party prevailing in
the district court—in this case, the government.” United States v. Ramirez, 476 F.3d 1231, 1235–36
(11th Cir. 2007).
2
Thus, because Officer Davis had probable cause to believe that Orozco had
committed a traffic violation, there existed probable cause to pull him over. See
United States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008); United States v.
Purcell, 236 F.3d 1274, 1276 n.5 (11th Cir. 2001). Accordingly, the district court
did not err by denying his suppression motion.
Second, Orozco argues that the evidence was insufficient to support a
six-level enhancement under U.S.S.G. § 2L1.1(b)(2)(B) because the evidence did
not demonstrate that he transported at least 25 illegal aliens.2 However, Orozco
admitted that he had transported between 4-8 illegal aliens on 9-10 different
occasions. We disagree with Orozco that this admission alone was insufficient,
but in any event it was corroborated by the facts and circumstances surrounding
the substantive offense for which he was convicted. To the extent Orozco argues
that the evidence in this respect was insufficient to support his conspiracy
conviction, his argument fails because the number of illegal aliens was not an
element of the offense (but rather went only to the statutory maximum). See 8
U.S.C. § 1324(a)(1)(B)(i).
2
“We review the district court’s findings of fact for clear error and its application of the
Sentencing Guidelines de novo. For a factual finding to be clearly erroneous, this court, after
reviewing all of the evidence, must be left with a definite and firm conviction that a mistake has been
committed.” United States v. Newman, 614 F.3d 1232, 1235 (11th Cir. 2010) (citations omitted).
3
Third, Orozco argues that the district court erred by failing to award him a
downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1.
He argues that, although he proceeded to trial, he did so only to challenge the
applicability of the criminal statute to his admitted conduct of being a taxi driver.
See U.S.S.G. § 3E1.1, comment. (n.2). However, the district court did not clearly
err because Orozco denied having the requisite mens rea, an essential factual
element of guilt. See id.; United States v. Starks, 157 F.3d 833, 840–41 (11th Cir.
1998). Nor did Orozco accept personal responsibility at sentencing.
Finally, Orozco argues that the district court erred by not granting him a role
reduction under U.S.S.G. § 3B1.2. However, Orozco was held accountable only
for the aliens that he personally transported, and he is therefore not entitled to an
adjustment merely because a broader criminal scheme may have existed.
Moreover, the only other identifiable participant in the conspiracy was Tony. And
while Tony may have played a supervisory role in the offense, Orozco cannot
establish that he is entitled to a role reduction on this ground. Under our decision
in United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc), Orozco has
not met his burden to show that the district court clearly erred by failing to grant
him a role reduction. Accordingly, we affirm Orozco’s convictions and sentences.
AFFIRMED.
4