United States v. Jose Maria Sanchez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 15, 2005

No. 05-11772 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 04-00368-CR-T-26-TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MARIA SANCHEZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(December 15, 2005)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Jose Maria Sanchez appeals his 135-month sentence for

possession with intent to distribute five kilograms or more of cocaine while on

board a vessel subject to the jurisdiction of the United States, in violation of 46

App. U.S.C. § 1903(a) and (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii),

and conspiracy to possess with intent to distribute five kilograms or more of

cocaine while on board a vessel subject to the jurisdiction of the United States, in

violation of 46 App. U.S.C. § 1903(a), (g), and (j) and 21 U.S.C. §

960(b)(1)(B)(ii). Sanchez argues two issues on appeal, namely, that (1) the district

court clearly erred in denying Sanchez a minimal or minor role reduction, pursuant

to U.S.S.G. § 3B1.2(b); and (2) the district court’s imposition of a sentence of 135

months was unreasonable because the district court only considered one of the §

3553(a) factors, entitling Sanchez to re-sentencing under United States v. Booker,

543 U.S. __, 125 S. Ct. 738 (2005). We affirm.

I.

Sanchez first argues that the district court erred in denying him a minor role

adjustment because it improperly ruled that the large amount of cocaine involved

in the offense precluded a minor role adjustment. Sanchez contends he should

have been granted a minor role adjustment because he was only a crew member, he

had no ownership interest in the cocaine, he was paid little compared to the

cocaine’s value, and there were more people involved in this offense than those

2

caught on the boat.

We have 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.1 United States v. De

Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). The Guidelines allow a

court to decrease a defendant’s offense level by four points if the court finds the

defendant was a minimal participant or by two points if the court finds the

defendant was a minor participant. U.S.S.G. § 3B1.2(a) and (b). A defendant is a

minimal participant if he is “plainly among the least culpable of those involved in

the conduct of a group.” § 3B1.2, comment. (n. 4). A defendant is a minor

participant if he “is less culpable than most other participants, but whose role could

not be described as minimal.” § 3B1.2, comment. (n. 5).

The party seeking the downward adjustment bears the burden of establishing

the defendant’s role was minor by a preponderance of the evidence. De Varon,

175 F.3d at 939. In determining whether a mitigating role reduction is warranted, a

district court examines: (1) the defendant’s role against the relevant conduct for

which he was held accountable, and (2) the defendant’s role in comparison to the

other participants. Id. at 940. When the relevant conduct attributed to a defendant

1

This standard of review survives Booker. See United States v. Crawford, 407

F.3d 1174, 1178 (11th Cir. 2005) (“We agree with the Fifth Circuit that Booker does

not alter our review of the application of the Guidelines.”).

3

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 for which he was

not held accountable. Id. at 941.

We conclude that the district court’s denial of a minor role adjustment is

supported by the record under the applicable two-pronged analysis established in

De Varon, 175 F.3d 930. Accordingly, the district court did not err in determining

that Sanchez did not qualify for a minor role reduction.

II.

Sanchez also argues that his sentence was unreasonable because the district

court did not adequately consider, elaborate on, or discuss all of the § 3553(a)

factors, as required by the holding in Booker, 543 U.S. __, 125 S. Ct. 738.

According to Sanchez, the district court only considered one factor, sentence

disparity, and did not consider other § 3553 factors in determining Sanchez’s

sentence.

Under Booker, we review a defendant’s ultimate sentence for

“unreasonableness.” 543 U.S. at ___, 125 S. Ct. at 765. Specifically, the United

States Supreme Court has directed sentencing courts to consider the following

factors in imposing sentences under the advisory Guidelines’s scheme:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need for the sentence imposed

4

– (A) to reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense; (B) to afford

adequate deterrence to criminal conduct; (C) to protect the public

from further crimes of the defendant; and (D) to provide the defendant

with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner; (3) the kinds of

sentences available; (4) the kinds of sentence and the sentencing range

established . . . [from the Guidelines]; and (5) any pertinent policy

statement . . .; (6) the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of

similar conduct; and (7) the need to provide restitution to any victims

of the offense.

18 U.S.C. § 3553(a); Booker, 125 S. Ct. at 765-66.

We clarified that we first evaluate, using pre-Booker precedent, whether the

district court correctly interpreted and applied the Guidelines to determine the

appropriate advisory Guideline range. Crawford, 407 F.3d at 1178-79. As we

noted, “the district court remains obliged to ‘consult’ and ‘take into account’ the

Guidelines in sentencing [the defendant],” and the “reasonableness” standard

applies to the ultimate sentence imposed. Id. We have held that, “nothing in

Booker or elsewhere requires the district court to state on the record that it has

explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors.” United States v. Scott, No. 05-11843, ___ F.3d ___ (11th Cir.

Sept. 27, 2005). The § 3553(a) factors serve as guides for the district and appellate

courts in determining whether a sentence is reasonable. United States v.

Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). However, we have declined to

5

hold sentences within the Guideline range per se reasonable. Id.

We conclude that Sanchez’s 135-month sentence is reasonable. As noted

above, Sanchez’s sentence was within the Guidelines range, one of the explicit §

3553(a) factors. 18 U.S.C. § 2553(a)(4). Further, the record shows the district

court consulted the Guidelines and made an accurate computation of the

Guidelines range. The district court also considered the other § 3553(a) factors and

nothing in the record convinces us that the sentence was unreasonable in light of

these factors.

Because we conclude that Sanchez’s ultimate sentence was reasonable, we

affirm.

AFFIRMED.

6