United States v. Eusebio Montana-Batalla

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 21, 2005

No. 05-11770 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 04-00467-CR-T-26-EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EUSEBIO MONTANA-BATALLA,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(October 21, 2005)

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Eusebio Montana-Batalla appeals his 135-month sentence for possession

with intent to distribute 5 kilograms or more of cocaine while aboard a vessel

subject to United States jurisdiction, in violation of 46 U.S.C. App. § 1903(a), (g),

and 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to possess with intent to

distribute 5 kilograms or more of cocaine while aboard a vessel subject to U.S.

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

§ 960(b)(1)(B)(ii). Montana-Batalla was sentenced after United States v. Booker,

543 U.S. __, 125 S. Ct. 738 (2005) under an advisory Guidelines scheme. After

review, we affirm.

I. BACKGROUND

A. Plea Colloquy

Montana-Batalla pled guilty without a written plea agreement to the above

charges. During the plea colloquy, the government set forth the following facts.

On or about September 23, 2004, in the eastern Pacific Ocean, Montana-Batalla

and seven co-defendants were traveling in the San Jose, a 77-foot fishing vessel

registered in Belize. The fishing vessel contained a large quantity of cocaine

packaged in 20-kilogram bails secreted in a hidden compartment, which was

located in the forward section of the hull.

On the morning of September 23, 2004, the United States Coast Guard

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boarded the San Jose and noticed that flooring tiles had been placed in fresh

concrete in both the port and starboard berthing compartments. Beneath the

newly-laid tiles, the Coast Guard found two entry ways to the hidden compartment.

Inside the compartment, the Coast Guard found 525 bales of cocaine weighing

approximately 10,500 kilograms. Montana-Batalla and his seven co-defendants

were detained and transported to the United States.

Prior to the time that the San Jose left the port in Colombia, Montana-Batalla

and his co-defendants met with the captain of the San Jose and learned that they

would be transporting the drugs to a transfer point in the eastern Pacific Ocean and

would then distribute it to another person.

At the end of the government’s proffer, Montana-Batalla admitted to the

facts.

B. PSI and Sentencing

The Presentence Investigation Report (“PSI”) assessed a base offense level

of 38, holding Montana-Batalla responsible for 10,500 kilograms of cocaine. The

PSI recommended (1) a two-level safety-valve reduction under U.S.S.G. § 5C1.2

and 18 U.S.C. § 3553(f); and (2) a three-level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1. With an offense level of 33 and a criminal

history category of I, Montana-Batalla’s Guidelines range was 135-168 months’

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imprisonment.

Montana-Batalla objected to the PSI’s failure to include a two-level

downward departure for his role in the offense pursuant to U.S.S.G. § 3B1.2(b).

The Probation Officer responded by stating that Montana-Batalla was being

held accountable only for the amount of drugs on the ship, the 10,500 kilograms,

which was the same amount attributable to his co-defendants. Thereafter,

Montana-Batalla filed a motion for a downward departure for his role in the

offense. Montana-Batalla’s motion argued that he was entitled to a departure

because he was not an organizer, leader, manager, or supervisor in the criminal

activity, and his role in the offense was “minimal at best and minor at the least” in

comparison to his co-defendants.

At the sentencing hearing, Montana-Batalla renewed his argument regarding

a minor-role reduction. Montana-Batalla argued that: (1) although this conspiracy

involved multiple trips, he was only involved in a single trip; (2) he was not

involved in the organization or planning of the conspiracy; (3) he had no equity

interest in the drugs; and (4) since “there must be a leader” in the conspiracy,

“there must be [] minimal and minor participants.”

The district court stated that, even assuming this trip was Montana-Batalla’s

first, it was “not going to treat him any differently than the other mechanic [it had]

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just sentenced.” The district court overruled Montana-Batalla’s objection, noting:

(1) a “tremendous” amount of cocaine, 10,500 kilograms, was involved in the

instant offense; (2) given the fact that the cocaine was hidden, a reasonable

inference would be that everyone on the vessel assisted in the conspiracy;

(3) Montana-Batalla was a mechanic, and “not just a regular mariner”; and (4)

“[w]hen you’re out there on the high seas and something goes wrong with a boat

like this, the first person you want to have is a good mechanic. So he’s integral to

this venture.”

Montana-Batalla then noted that the district court already had mentioned

some of the factors listed in § 3553(a); however, Montana-Batalla asked the court

to consider the following in imposing his sentence: (1) he had served in the

Colombian army; (2) he did not have a criminal history; (3) he had a stable work

history; and (4) his family was struggling as a result of his incarceration. The

district court acknowledged these facts and sentenced Montana-Batalla to a term of

135 months’ imprisonment as to Counts 1 and 2, to be served concurrently.

II. DISCUSSION

A. Minor Role Reduction

On appeal, Montana-Batalla first argues that the district court erred by

denying him a minor or minimal-role reduction. We review for clear error a

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district court’s determination of a defendant’s qualification for a role reduction.

United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).

The defendant has the burden of establishing his role in the offense by a

preponderance of the evidence. Id. at 939. Two principles guide a district court’s

consideration: (1) the court must compare the defendant’s role in the offense with

the relevant conduct attributed to him in calculating his base offense level; and (2)

the court may compare the defendant’s conduct to that of other participants

involved in the offense. Id. at 943-44. When 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 for

which he was not held accountable. Id. at 941.

The district court did not clearly err in refusing to grant Montana-Batalla a

minor-role reduction. Under the first prong of the De Varon test, the district court

held Montana-Batalla accountable for only the 10,500 kilograms of cocaine

attributable to him. See De Varon, 175 F.3d at 942-43 (“Therefore, when a drug

courier’s relevant conduct is limited to her own act of importation, a district court

may legitimately conclude that the courier played an important or essential role in

the importation of those drugs.”).

As to the second prong of the De Varon test, we reject Montana-Batalla’s

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argument that there must be a minor participant. Even if Montana-Batalla’s role

was less than that of some of the other participants, this Court stated in De Varon

that the fact that a defendant’s role is less than that of other participants involved

does not automatically entitle him to a minor-role reduction because it is possible

that none of the individuals is entitled to be a minor participant. De Varon, 175

F.3d at 944. Moreover, the district court specifically noted that it imposed the

same sentence on Montana-Batalla as it imposed on other co-conspirators with the

same role. Additionally, Montana-Batalla failed to present any evidence

distinguishing his involvement from that of other crew members. Thus, the district

court did not err in determining that Montana-Batalla did not qualify for a minor-

role reduction.

B. Booker

Montana-Batalla also argues that the district court failed to consider the

factors in § 3553(a) in imposing his sentence. Montana-Batalla contends that,

although the court was “appraised of [his] family and financial background, health,

educational and vocational level, and lack of criminal history,” it failed to take

these factors into consideration.

In Booker, the Supreme Court held that the mandatory nature of the

Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s

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guarantee to the right to a jury trial. Id. at 749-51. The Supreme Court decided

that the appropriate remedy was to excise two specific statutory provisions that

made the Guidelines mandatory, thereby rendering the Guidelines advisory. Id. at

764. The Supreme Court explained that, “[w]ithout the ‘mandatory’ provision, the

Act nonetheless requires judges to take account of the Guidelines together with

other sentencing goals” contained in § 3553(a). Id. Section 3553(a) provides that

district courts imposing a sentence must consider, inter alia, the nature and

circumstances of the offense; the history and characteristics of the defendant; the

need for the sentence to reflect the seriousness of the offense; to promote respect

for the law, and to provide just punishment for the offense, and the sentencing

range established by the Guidelines. See 18 U.S.C. § 3553(a).

Post-Booker, we review sentences for unreasonableness. Booker, 125 S. Ct.

at 765 (quotation and alteration omitted); see also United States v. Crawford, 407

F.3d 1174, 1178 (11th Cir. 2005) (noting that “Booker established a

‘reasonableness’ standard for the sentence finally imposed on a defendant”). We

recently 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, – F.3d –, 2005

WL 2351020, at *4 (11th Cir. Sept. 27, 2005).

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We conclude that Montana-Batalla’s 135-month sentence is reasonable. As

noted above, Montana-Batalla’s sentence was within the Guidelines range, one of

the explicit § 3553(a) factors. 18 U.S.C. § 3553(a)(4). As the Booker Court noted,

“[t]he district courts, while not bound to apply the Guidelines, must consult those

Guidelines and take them into account when sentencing.” Booker, 125 S. Ct. at

767. Further, it is clear the district court consulted the Guidelines as advisory and

made an accurate computation of the Guidelines range.

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

court specifically considered the nature and circumstances of the offense and the

history and characteristics of the defendant, including the probability that

Montana-Batalla had committed the instant offense in an effort to provide for his

family in Colombia. Further, the district court also considered Montana-Batalla’s

lack of criminal history and his stable work history.

And although the district court did not explicitly set forth each § 3553(a)

factor, as discussed above, the district court was not required to do that. Scott,

2005 WL 2351020, at *4. In short, nothing in the record convinces us that the

sentence was unreasonable in light of the § 3553(a) factors. We are satisfied under

the circumstances of this case that the sentence was reasonable. United States v.

Winingear, – F.3d –, 2005 WL 2077087, at *4 (11th Cir. Aug. 30, 2005)

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(concluding sentence was reasonable in light of the Guidelines range and the other

factors outlined in § 3553(a)).

Upon careful review of the record on appeal, and upon consideration of the

parties’ briefs, we discern no reversible error. Accordingly, we affirm Montana-

Batalla’s sentence.

AFFIRMED.

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