United States v. Jose Eusebio Valencia-Aguirre , 130 F. App'x 305 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 29, 2005
No. 04-13823
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00445-CR-T-23-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE EUSEBIO VALENCIA-AGUIRRE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 29, 2005)
Before CARNES, MARCUS and GODBOLD, Circuit Judges.
PER CURIAM:
Jose Eusebio Valencia-Aguirre received a 135-month sentence for cocaine
trafficking on board a vessel subject to the jurisdiction of the United States. He
appeals his sentence based on the district court=s the district court=s application of a
base offense level premised on a quantity of drugs, three tons, not specifically
charged in the indictment to which he pleaded guilty, was unlawful and violated
his rights pursuant to Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004).
He also contends that the district court erred by failing to grant a downward
departure because he played only a minor role in the offense. We hold that
Valencia-Aguirre must be resentenced based on the district court=s mandatory
application of the sentencing guidelines. However we find Valencia-Aguirre’s
minor role argument without merit.
Valencia-Aguirre’s sentence was a result of his participation in a scheme to
transport cocaine from Columbia into the United States using a fishing boat. The
vessel, a wolf in sheep’s skin, was designed to appear as though it were engaged in
offshore fishing activities. Valencia-Aguirre was recruited and paid to play the
role of one of the fisherman. The cocaine was secreted in a compartment below
the galley. All did not go as planned. Valencia-Aguirre was apprehended along
with the rest of the boat crew by the United States Coast Guard in international
waters in the Eastern Pacific Ocean. He conceded involvement in the scheme and
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was given a sentence in part based on the amount of drugs found in the boat. He
objected to his base offense level arguing that it should be 32 (25 including
adjustments) instead of 38 with a sentencing range of 57 to 71 months. The district
court found its hands tied. It stated that the base level was Aundoubtedly high@ but
that it would adhere strictly to the guidelines. The court noted if the law changed
Athat=s a mere computation which can be done probably by the two of you [the
government and Valencia-Aguirre] by stipulation, and we can amend the judgment
at a later date or whatever.@ Valencia-Auguirre appealed. In light of United States
v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005) the district court must resentence
Valencia-Auguirre.
Because Valencia-Aguirre timely raised his constitutional objection in the
district court, this Court reviews the constitutional issue de novo, but will not
reverse for harmless error. United States v. Anderson, 289 F.3d 1321, 1326 (11th
Cir. 2002). The government has the burden of showing that this error did not
contribute to the sentence obtained. United States v. Paz, ___ F.3d. ___, 2005 WL
757875 (11th Cir. Apr. 5, 2005). We recently held that the district court committed
a Booker error by applying the guidelines as mandatory. United States v. Shelton,
400 F.3d 1325 (11th Cir. 2005). Based on the district court=s comments at
sentencing disapproving of the severity of the sentence but conceding that the
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guidelines dictated the harsh result, we held that the error affected the defendant=s
substantial rights. Id. at 1332-33. Although Shelton is a plain-error case, A[t]he
appropriate review under the harmless error review standard mirrors the plain error
review standard regarding prejudice to substantial rights, except that the burden of
persuasion shifts: the government must show the absence of prejudice to the
defendant=s substantial rights.@ United States v. Fern, 155 F.3d 1318, 1327 (11th
Cir. 1998). In light of the district court’s comments regarding Valencia-Aguirre’s
sentence and mandatory guidelines regime we find Booker error in Valencia-
Aguirre’s sentence. The government has not (and cannot) show that this error was
harmless. Accordingly we vacate Valencia-Aguirre=s sentence and remand for
resentencing consistent with Booker.
Valencia-Aguirre=s minor-role reduction argument is another story. We
have Arepeatedly held that 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.
Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999). The proponent of the
downward adjustment always bears the burden of proving the mitigating role in the
offense by a preponderance of the evidence. Id. at 939. In determining the
defendant=s role, the decision falls within the sound discretion of the district court:
Aa trial court=s choice between >two permissible views of the evidence= is the very
essence of the clear error standard of review.@ Id. at 945.
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A district court must decrease the defendant=s offense level by two Aif the
defendant was a minor participant.@ U.S.S.G. ' 3B1.2(b). A minor participant is
one Awho is less culpable than most other participants, but whose role could not be
described as minimal.@ Id. at comment. n.3. Two legal principles govern this
inquiry. De Varon, 175 F.3d at 934. First, Athe district court must measure the
defendant's role against [his] relevant conduct, that is, the conduct for which [he]
has been held accountable under U.S.S.G. ' 1B1.3.@ Id. In determining a
defendant=s conduct in the offense, the Aamount of drugs is a relevant factor and . . .
under some circumstances it may be dispositive.@ Id. at 943. Moreover, Aa
defendant's status as a drug courier does not alter the principle that the district
court must assess the defendant's role in light of the relevant conduct attributed to
[him].@ Id. at 942. A Acourier status in and of itself is not dispositive of whether a
defendant is entitled to or precluded from receiving a downward adjustment for
[his] role in the offense.@ Id. Second, Awhere the record evidence is sufficient, the
district court may also measure the defendant's conduct against that of other
participants@ in the crime. Id. at 934.
The district court's decision to deny Valencia-Aguirre a minor-role reduction
is supported by the record, even if, as he asserts, he had no knowledge of the
structure of the enterprise or of others= activities. Under the first prong of the De
Varon test Valencia-Aguirre=s relevant conduct arose out of his own activities and
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his criminal agreement to transfer and transport three tons of cocaine, an amount of
drugs large enough to be dispositive of Valencia-Aguirre=s playing more than a
minor role in the offense. Under the second prong of the De Varon test, when
comparing Valencia-Aguirre=s role to the role of other participants in the offense,
his participating as a crew member in the transfer and transport of three tons of
cocaine and his receipt of payment for his services shows that he is equally
culpable to the other participants.
VACATED AND REMANDED, in part, AFFIRMED, in part.
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