The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13453 ELEVENTH CIRCUIT
MAY 3, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-20143-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE VALDES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 3, 2011)
Before BARKETT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Jorge Valdes appeals his total sentence of 228 months’ imprisonment,
imposed after he pled guilty to one count of conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and
841(a)(1), (b)(1)(A)(ii) (“Count 1”), one count of conspiracy to interfere with
commerce by means of robbery, in violation of 18 U.S.C. § 1951(a) (“Count 3”),
and one count of possessing a firearm during and in relation to, and in furtherance
of, a crime of violence and a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A) (“Count 6”).
Valdes first argues that the court erred by imposing a mandatory five-year
sentence, pursuant to 18 U.S.C. § 924(c), consecutively to the sentence imposed on
the other two counts, because there was a ten-year statutory mandatory minimum
for the underlying drug offense, which he argues replaced and eliminated the
mandatory minimum five-year sentence. Alternatively, he argues that the court
erred in ruling that the sentence imposed under § 924(c) was required to run
consecutively to (a) the entire sentence imposed for the other counts, rather than
(b) the statutory mandatory minimum for the underlying drug offense.
The interpretation of a criminal statute is a question of law that we review
de novo. See United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).
Section 924(c)(1)(A) states that:
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Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any
person who, during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug trafficking
crime . . . be sentenced to a term of imprisonment of not less than 5
years.
18 U.S.C. § 924(c)(1)(A) (emphasis added). Section 924(c) further provides that,
“[n]otwithstanding any other provision of law . . . no term of imprisonment
imposed on a person under this subsection shall run concurrently with any other
term of imprisonment imposed on the person, including any term of imprisonment
imposed for the crime of violence or drug trafficking crime during which the
firearm was used, carried, or possessed.” 18 U.S.C. § 924(c)(1)(D)(ii).
Valdes’s argument is now foreclosed by the Supreme Court’s recent
decision in Abbott v. United States, 562 U.S. ___, ___,131 S.Ct. 18, 23, 178
L.Ed.2d 348 (2010), in which the Court held, in accord with our prior circuit
precedent in United States v. Segarra, 582 F.3d 1269 (11th Cir. 2009), that “a
defendant is subject to a mandatory, consecutive sentence for a § 924(c)
conviction, and is not spared from that sentence by virtue of receiving a higher
mandatory minimum on a different count of conviction.” This is because § 924(c)
prescribes a discrete sentence that must be imposed in addition to the sentence
received for a separate conviction, and the “except” clause is triggered only when
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another statutory provision requires a longer term for conduct violating § 924(c).
Abbott, 562 U.S. at ___,131 S.Ct. at 23. Accordingly we see no error in the district
court’s imposition of consecutive five-year sentence as required by § 924(c).
Valdes also argues that the court clearly erred in denying him a minor-role
adjustment and abused its discretion by imposing a procedurally and substantively
unreasonable sentence. The district court’s determination that a defendant does not
qualify for a minor-role reduction is a factual finding which is reviewed for clear
error. United States v. DeVaron, 175 F.3d 930, 934, 937 (11th Cir. 1999) (en
banc). Section 3B1.2 of the Guidelines provides for a reduction in a defendant’s
offense level if he played a minor role in the offense. U.S.S.G. § 3B1.2 (b). This
requires that the defendant was substantially less culpable than the average
participant. Id., comment. (n.3). The proponent of the reduction bears the burden
of establishing his minor role in the offense by a preponderance of the evidence.
DeVaron, 175 F.3d at 934.
In DeVaron, we held that two legal principles should guide the district court
in its fact-finding endeavor. Id. at 934. First, the district court should measure the
defendant’s role against his relevant conduct, that is, the conduct for which he has
been held accountable at sentencing. Id. at 934, 945. Second, where the record is
sufficient, the district court may also measure the defendant’s conduct against that
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of other participants in the criminal scheme attributed to the defendant. Id. at 934,
945.
Although the district court recognized that Valdes did less in the conspiracy,
it was concerned that it had not granted a minor role reduction to one other of
Valdes’s co-conspirator’s, Luis Valle, who also was brought in to the conspiracy
on the last day. Valdes argues that it was improper and procedurally unreasonable
for the district court to refuse to grant him a two-level minor role reduction based
on a concern about an unwarranted sentencing disparity between himself and
Valle. We agree that it would be improper to deny Valdes a minor role reduction
simply because a co-conspirator was not granted one. First, Valle never asked for
a minor role reduction. Second, a disparity in sentencing is not a reason to deny a
minor role reduction as the very purpose of this reduction is precisely to give a
disparate sentence from that given to those more culpable. However, in addition to
those comments which might indicate that sentencing disparity was the sole reason,
the district court also noted its belief that Valdes’s role in the offense was not
minor and there were other reasons to support that conclusion. Accordingly, we
cannot say that the district court clearly erred in denying this reduction. We also
find no procedural or substantive error in the sentence.
AFFIRMED.
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