The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 30, 2005
No. 05-12160 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00551-CR-T-27-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO RAMOS BERTEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 30, 2005)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Alejandro Ramos Bertel appeals his 188-month sentence after pleading
guilty to conspiring to possess and possessing with intent to distribute five
kilograms or more of cocaine while aboard a vessel subject to United States
jurisdiction, in violation of 46 U.S.C. §§ 1903(a), (g), and (j), and 21 U.S.C.
§ 960(b)(1)(B)(ii). The district court denied him a mitigating-role adjustment
pursuant to U.S.S.G. § 3B1.2. We AFFIRM.
I. BACKGROUND
In November 2004, the helicopter crew from the Royal Dutch Naval vessel
Willem Van Der Zaan observed a go-fast boat stopped in the southwest Carribean
Sea. Upon sighting the helicopter, the go-fast boat attempted to evade it. During
pursuit by the helicopter, the crew of the go-fast boat threw bales of cocaine into
the sea and subsequently stopped the boat. A United States Coast Guard Law
Enforcement Detachment (“Coast Guard”) assigned to the Willem Van Der Zaan
for a counter-narcotics patrol intercepted and boarded the go-fast boat to determine
its nationality. Although the crew claimed Colombian citizenship, the go-fast boat
flew no flag and had no registry. Coast Guard personnel contacted Colombian
authorities, who informed that the go-fast boat, which contained approximately
600 pounds of fuel, was without nationality.
The Dutch vessel’s crew recovered 58 bales of cocaine, weighing 1,450
kilograms, from the go-fast boat’s course, while the Coast Guard removed Bertel
2
and the others from the go-fast boat for transport to a United States naval vessel.
During post-Miranda statements, authorities learned that the four crew members
had been recruited to take the bales of cocaine to a location in the Caribbean Sea
and that one of the men was the captain of the go-fast boat.
Pursuant to U.S.S.G. § 3D1.2(d), the probation officer grouped counts one
and two of the indictment together based on the drug quantity involved. Based on
the 1,450 kilograms of cocaine for which Bertel was held accountable, the
probation officer assigned a base offense level of 38, pursuant to § 2D1.1(c)(1),
which corresponds to quantities of 150 kilograms or more of cocaine. Because
Bertel had a prior criminal history, the probation officer found that he did not
qualify for a § 5C1.2 safety-valve reduction. No adjustment was given for
Bertel’s role in the offense. A two-point reduction was made for acceptance of
responsibility, pursuant to § 3E1.1(a), and another one-point reduction was made
because Bertel provided timely notification to the government of his intent to plead
guilty, resulting in a total offense level of 35. Bertel had three criminal history
points for a prior conviction for possession with intent to distribute less than 700
kilograms of marijuana, resulting from his previous apprehension from a vessel
south of Puerto Rico. He was assigned a criminal history category of II, resulting
in a Sentencing Guidelines imprisonment range of 188-235 months.
3
After preparation of the Presentence Investigation Report (“PSI”), Bertel
objected to the lack of a downward adjustment for his role in the offense and
contended that he was only a minor participant in the overall conspiracy. The
probation officer determined that Bertel was not entitled to a role adjustment
because his role as a crew member was comparable to others in the conspiracy, and
there was not sufficient verifiable information to show that he qualified for a
downward adjustment.
At the sentencing hearing, Bertel’s counsel reiterated his argument that
Bertel should receive a minor-role adjustment. He noted that Bertel was only a
crewman, and not an owner of the drugs or organizer of the conspiracy, but rather
“simply a set of hands” facilitating the transport of the drugs. R3 at 3-4. He also
noted that a minimal-role adjustment may be warranted based on the same
argument. Id. at 4-5. Bertel made no objections to the facts contained in the PSI.
The government noted that the captain of the boat was given a sentencing
enhancement because of his special skill as a driver and a captain, but argued that
the three others were “essentially equally culpable.” Id. at 6.
The district judge overruled Bertel’s objection and denied his request for a
downward adjustment. Based on the relevant conduct for which Bertel was held
accountable, the judge determined that nothing in the record indicated that “he
4
[wa]s less culpable than most of the other participants,” and his culpability did not
diminish just because his role may not have been as important as the others
because his role as a crewman was significant in the successful operation of the
conspiracy. Id. at 8-9. Bertel was sentenced at the low end of the Sentencing
Guidelines range to 188 months of imprisonment.1
II. DISCUSSION
On appeal, Bertel argues that the district court erred in failing to give him a
mitigating-role adjustment because no evidence showed that he owned, sold or
distributed the drugs in exchange for money, and, therefore, his role is less than
that of the larger organization behind the conspiracy. He also argues that the
district court did not give any consideration to his mitigating role at sentencing.
He contends that his role was less than that of all of the major transporters and
owners of the drugs and that he was simply a crewman.
A sentencing court’s determination of a defendant’s role in an offense
constitutes a factual finding that we review for clear error. United States v.
1
Bertel was sentenced on 11 April 2005, and his counsel argued that, since the range of
188-235 months was no longer binding on the district court, the court should consider the range
as well as other factors listed in 18 U.S.C. § 3553(a) in imposing a reasonable sentence. R3 at
10-13. See United States v. Booker, 543 U.S. ___, ___, 125 S.Ct. 738, 764 (2005). The district
court considered the § 3553(a) factors when it sentenced Bertel to 188 months of imprisonment.
R3 at 19-20. Since Bertel does not argue reasonableness on appeal, it is abandoned. See United
States v. Jernigan, 341 F.3d 1273, 1282 n.8 (11th Cir. 2003) (noting that a claim that is not
plainly and prominently indicated is abandoned on appeal, even if properly preserved below).
5
De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The proponent of the
downward adjustment always bears the burden of proving the mitigating role in the
offense by a preponderance of the evidence.2 Id. at 939.
The Sentencing Guidelines permit a court to decrease a defendant’s offense
level by four levels if it finds that the defendant was a “minimal participant” or two
levels if it finds that the defendant was a “minor participant” in the criminal
activity. U.S.S.G. § 3B1.2. A minimal participant is one who is “plainly among
the least culpable of those involved in the conduct of a group,” U.S.S.G. § 3B1.2,
comment. (n. 4), while a minor participant is one “who is less culpable than most
other participants, but whose role could not be described as minimal,” U.S.S.G.
§ 3B1.2, comment. (n. 5).
The adjustment applies if the defendant proves by preponderance of the
evidence that he “play[ed] a part in committing the offense that makes him
substantially less culpable than the average participant.” U.S.S.G. § 3B1.2,
comment. (n. 3(A)); United States v. Everett, 129 F.3d 1222, 1224 (11th Cir. 1997)
(per curiam). The determination of whether to apply a role reduction is a heavily
2
Pre-Booker standards are used to review a Sentencing Guidelines calculation. United
States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (pre-Booker sentence). Even though
the Sentencing Guidelines are advisory after Booker, the trial court must continue to consider
them when sentencing and must calculate the sentence under the Guidelines correctly. Id. at
1178-79.
6
fact-based inquiry and a sentencing court, “in weighing the totality of the
circumstances, is not required to find, based solely on the defendant’s bare
assertion, that such a role adjustment is warranted.” U.S.S.G. § 3B1.2, comment.
(n.3(C)).
In determining whether a mitigating role adjustment is warranted, a district
court first must evaluate the defendant’s role in the relevant conduct for which he
has been held accountable at sentencing. De Varon, 175 F.3d at 940. In looking at
relevant conduct, “the district court must assess 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. “Only if the defendant can
establish that [he] played a relatively minor role in the conduct for which [he] 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.” Id. at 944. Although a defendant’s status as a drug courier alone does
not establish whether or not he is a minor participant, “when a drug courier’s
relevant conduct is limited to [his] own act of importation [or transportation], 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. Furthermore, in the
drug-courier context, “the amount of drugs imported is a material consideration in
7
assessing a defendant’s role in [his] relevant conduct” and, in some cases, could be
dispositive. Id. at 943.
The district court may also evaluate a defendant’s role by comparing it to
that of other participants in his relevant conduct. Id. at 940. When measuring a
defendant’s conduct against other participants’ conduct, a district court may
consider only those participants who are identifiable by the evidence and who were
involved in the relevant conduct for which the defendant was convicted. Id. at 944.
“The fact that a defendant’s role may be less than that of other participants engaged
in the relevant conduct may not be dispositive of [his] role in the offense, since it is
possible that none are minor or minimal participants.” Id. “[T]he district court
must determine that the defendant was less culpable than most other participants in
[his] relevant conduct.” Id.; see also U.S.S.G. § 3B1.2, comment. (n. 3(A)) (“This
section provides a range of adjustments for a defendant who plays a part in
committing the offense that makes him substantially less culpable than the average
participant.”).
The district court did not clearly err in refusing to grant Bertel a mitigating-
role adjustment. First, Bertel is held accountable for a large amount of drugs, and
this alone could preclude him from receiving a mitigating-role adjustment.
De Varon, 175 F.3d at 943. Furthermore, where Bertel’s relevant conduct was
8
possessing with intent to distribute 1,450 kilograms of cocaine, he must establish
that he was a minor participant with respect to that relevant conduct, rather than
noting that there was a broader criminal conspiracy. See id. at 944. Finally,
Bertel’s relevant conduct is identical to his actual conduct. In the drug transport
context, the district court is allowed to conclude, as it did here, that he played an
important or essential role in the transportation of those drugs. See id. at 942-43;
R3 at 9.
The second prong of De Varon further precludes a mitigating-role
adjustment. To the extent that Bertel is arguing that his role should be compared to
others in a larger conspiracy, his argument is meritless because these others are not
discernible from the evidence and are not part of the relevant conduct for which
Bertel was convicted. De Varon, 175 F.3d at 944. With respect to the other
participants in the relevant conduct, they were all part of the same conspiracy and
all held accountable for the same amount of drugs. There is nothing in the facts, to
which Bertel did not object, to indicate that Bertel was substantially less culpable
than most of his fellow crewmen. Furthermore, as the district court noted, his role
as a crewman was significant in the successful operation of the conspiracy.
Though Bertel’s role may be less than that of the captain’s, who was given an
enhancement, this does not automatically entitle him to a mitigating-role
9
adjustment since it is possible that none of the participants are minor or minimal,
as the district court concluded. Id.
Bertel’s argument that he was not the owner of the drugs was not supported
by the evidence. Because a defendant’s role in an offense is a fact-intensive
inquiry, the district court was not required to grant Bertel a mitigating-role
adjustment based on his bare assertion. U.S.S.G. § 3B1.2, comment. (n.3(C)).
Since he did not call witnesses or otherwise testify in support of his assertion,
Bertel did not meet his burden of showing by a preponderance of the evidence that
his relevant conduct made him substantially less culpable than his codefendants.
The district judge considered the mitigating role adjustment and adequately
explained an acceptable reason for not granting the adjustment.
III. CONCLUSION
Bertel has appealed the district judge’s denying him a mitigating-role
adjustment under U.S.S.G. § 3B1.2 in his sentence following his pleading guilty to
conspiring to possess and possessing with intent to distribute five kilograms or
more of cocaine while aboard a vessel subject to United States jurisdiction, in
violation of 46 U.S.C. § 1903(a), (g), and (j), and 21 U.S.C. § 960(b)(1)(B)(ii). As
we have explained, the district judge appropriately denied Bertel a mitigating-role
adjustment. Accordingly, his sentence is AFFIRMED.
10