United States v. Mario Gonzales , 388 F. App'x 866 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 21, 2010
No. 09-16069 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00030-CR-5-RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO GONZALES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 21, 2010)
Before EDMONDSON, BIRCH and MARTIN, Circuit Judges.
PER CURIAM:
Mario Gonzales appeals his 51-month sentence, imposed after he pleaded
guilty to one count of conspiracy to distribute and possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(C), 846.
Gonzales argues that the district court abused its discretion when it refused
to adjust his base offense level on the grounds that his role in the conspiracy
underlying his offense was minor or minimal. He contends that he did not
transport or store cocaine, package cocaine for sale, or determine when and where
the cocaine would be delivered. He argues that the district court erred by failing to
consider his actions relative to the entire criminal scheme. For these reasons, he
maintains that he was entitled to a minor or minimal participant role adjustment
under United States Sentencing Guidelines § 3B1.2.1
1
Gonzales makes passing reference to the Eighth Amendment but offers no argument
and cites no authority to support the position that the imposed sentence was cruel and unusual.
Thus, Gonzales has abandoned any Eighth Amendment claim. See Doe v. Moore, 410 F.3d
1337, 1349 n.10 (11th Cir. 2005).
Gonzales’s brief focuses almost exclusively on the district court’s decision not to afford
him a minimal or minor role adjustment. However, in the introduction and conclusion to his
detailed discussion of U.S.S.G. § 3B1.2, he asserts in a conclusory fashion that his sentence was
also unreasonable. Because he fails to directly analyze the procedural and substantive
shortcomings that purportedly made the district court’s sentence unreasonable, Gonzales has
waived these claims. See id. (“On appeal, we require appellants to not only state their
contentions to us, but also to give ‘the reasons for them, with citations to the authorities and parts
of the record on which the appellant relies.’” (quoting Fed. R. App. P. 28(a)(9)(A))). Even if he
has not waived this issue, the sentence is procedurally and substantively reasonable. At
sentencing, the district court’s reference to and discussion of the 18 U.S.C. § 3553(a) factors
were sufficient to assure procedural reasonableness. See United States v. Scott, 426 F.3d 1324,
1329–30 (11th Cir. 2005). Further, the sentence fell at the middle of the Guidelines range and so
we presume it to be substantively reasonable. See United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). Gonzales has not demonstrated that the district court abused its discretion
when it imposed the 51-month sentence.
2
A district court’s determination of a defendant’s role in the offense is a
finding of fact that we review for clear error. United States v. Rodriguez De
Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The proponent of the
downward adjustment must prove by a preponderance of the evidence that he is
entitled to a role adjustment. Id. at 939. Because of the “[i]ntensely factual”
nature of this inquiry, id. at 938, “this decision falls within the sound discretion of
the trial court,” id. at 945. Accordingly, “[s]o 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, . . . it will be rare for an appellate court to conclude that the sentencing
court’s determination is clearly erroneous.” Id. (emphasis omitted).
A district court may reduce a defendant’s base offense level by four points if
the defendant was a minimal participant in the offense or by two levels if the
defendant was a minor participant. United States Sentencing Guidelines § 3B1.2
(Nov. 2008). In determining whether a mitigating role reduction is warranted, a
district court performs a two-prong analysis, examining (1) “the defendant’s role
against the relevant conduct for which [he] has been held accountable,” and (2) the
defendant’s role in comparison to the other participants. Rodriguez De Varon, 175
F.3d at 940. Under the mandatory first prong, “the district court must assess
whether the defendant is a minor or minimal participant in relation to the relevant
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conduct attributed to the defendant in calculating [his] base offense level.” Id. at
941. The district court must consider all facts probative of the defendant’s role.
Id. at 943. However, a defendant is not entitled to a role adjustment unless he
played a minimal or minor role in the conduct for which he has already been held
accountable, not just a minimal or minor role in a larger conspiracy. Id. at 941–42,
944. As we have noted, “in many cases this method of analysis will be
dispositive.” Id. at 945.
Under the second prong, the district court may also assess a defendant’s
culpability in comparison to “other participants in the relevant conduct.” Id. at
944. The district court may only consider participants who are “identifiable or
discernable from the evidence” and “who were involved in the relevant conduct
attributed to the defendant.” Id. “The conduct of participants in any larger
criminal conspiracy is irrelevant.” Id. “[A] defendant is not automatically entitled
to a minor role adjustment merely because [he] was somewhat less culpable than
the other discernable participants.” Id. Furthermore, “[t]he fact that a defendant’s
role may be less than that of other participants engaged in the relevant conduct may
not be dispositive of [the] role in the offense, since it is possible that none are
minor or minimal participants.” Id. In order for the defendant to receive a minor
or minimal role adjustment, “the district court must determine that the defendant
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was less culpable than most other participants in [his] relevant conduct.” Id.Here, the relevant conduct attributed to Gonzales was conspiring to
distribute and possess with intent to distribute between 200 and 300 grams of a
mixture and substance containing cocaine. At his plea colloquy, Gonzales
accepted as true the facts set out by the government, including that he purchased
and then distributed cocaine to drug customers in and around Panama City,
Florida. Further, Gonzales conceded at sentencing that he was accountable for the
amount of cocaine calculated by the Presentence Investigation Report—212.62
grams.
The first prong of the Rodriguez De Varon analysis turns on “whether the
defendant is a minor or minimal participant in relation to the relevant conduct
attributed to the defendant in calculating [his] base offense level.” Id. at 941.
Pursuant to the Sentencing Guidelines, one who conspires to distribute or possess
“[a]t least 200 G[rams] but less than 300 G[rams] of Cocaine” is attributed a base
offense level of 20. U.S.S.G. § 2D1.1(c)(10). This was precisely the base offense
level that the district court used to calculate Gonzales’s Guidelines range. Thus,
the conduct for which he was held responsible was identical to his actual conduct.
Despite this fact, Gonzales argues that the quantity of drugs that he
possessed and distributed was small relative to that possessed and distributed by
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other members of the conspiracy, and therefore that his role in the conspiracy was
either minimal or minor. We have, however, expressly rejected application of
similar logic when analyzing U.S.S.G. § 3B1.2. See Rodriguez De Varon, 175
F.3d at 941 (“[A U.S.S.G. § 3B1.2] adjustment only makes sense analytically if
the defendant can establish that her role was minor as compared to the relevant
conduct attributed to her. Otherwise, a defendant could argue that her relevant
conduct was narrow for the purpose of calculating base offense level, but was
broad for determining her role in the offense.” (emphasis omitted)); id. at 944
(“Only if the defendant can establish that she played a relatively minor role in the
conduct for which she has already been held accountable—not a minor role in any
larger criminal conspiracy—should the district court grant a downward adjustment
for minor role in the offense.”).
“[W]here 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. Gonzales
admitted to possessing and distributing 212.62 grams of cocaine and his sentencing
range was calculated accordingly. His sentence therefore reflected only that
quantity of cocaine for which he was personally held accountable—not that
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quantity of cocaine distributed by his co-conspirators. The district court did not
clearly err when it refused to grant Gonzales an adjustment pursuant to U.S.S.G.
§ 3B1.2. See United States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir.
2006) (“The district court did not clearly err in refusing to grant [the defendant] a
minor role reduction. . . . [The defendant] was held accountable for only the drugs
found in the three plastic containers that [he] admitted conspiring to transport to
Atlanta.”).
Given Gonzales’s failure to carry his burden as to the first Rodriguez De
Varon prong, we need not reach the second prong. Rodriguez De Varon, 175 F.3d
at 945; United States v. Bernal-Benitez, 594 F.3d 1303, 1321 n.25 (11th Cir.
2010). Still, we observe that Gonzales has failed to demonstrate entitlement to a
minimal or minor participant adjustment in light of his culpability relative to other
participants in the relevant conduct. Though Gonzales claims that he was merely a
“facilitator,” not a drug kingpin or even a street-level dealer, he still “played an
important or essential role in [his] relevant conduct,” Rodriguez De Varon, 175
F.3d at 946, namely conspiring to distribute and possess with intent to distribute
200 to 299 grams of cocaine. See id. at 944 (observing that, when evaluating the
second prong, “the district court may consider only those participants who were
involved in the relevant conduct attributed to the defendant” and “[t]he conduct of
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participants in any larger criminal conspiracy is irrelevant”). Accordingly,
Gonzales did not bear his burden of demonstrating by a preponderance of the
evidence that he “was less culpable than most other participants in [his] relevant
conduct.” Id. The district court’s conclusion that Gonzales’s sentence properly
reflected his culpability is supported by the record and is not clearly erroneous.
For the foregoing reasons, the district court did not clearly err when it found
that Gonzales did not qualify for a minimal or minor role adjustment pursuant to
U.S.S.G. § 3B1.2.
AFFIRMED.
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