United States v. Roman Rodriguez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

DECEMBER 13, 2006

No. 05-17155 THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 05-20600-CR-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROMAN RODRIGUEZ,

a.k.a. Roman Pastor Rodriguez,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(December 13, 2006)

Before TJOFLAT, HULL and BOWMAN,* Circuit Judges.

PER CURIAM:

*

Honorable Pasco M. Bowman II, United States Circuit Judge for the Eighth Circuit,

sitting by designation.

Roman P. Rodriguez appeals his conviction and 120-month sentence

imposed after pleading guilty to conspiracy and attempt to possess with intent to

distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A)(ii). Specifically, Rodriguez contends that the district court erred in

not ensuring that there was an adequate factual basis for his guilty plea and in not

applying a safety-valve reduction to his sentence. After review and oral argument,

we affirm.

I. BACKGROUND

After a federal grand jury indicted Rodriguez, he ultimately agreed to plead

guilty to both counts pursuant to a written plea agreement. At the change-of-plea

hearing, the government and Rodriguez entered into a written factual proffer for

entry of the guilty plea. The factual stipulation, which was signed by Rodriguez

and his counsel, provided as follows:

1. On June 27, 2005, Roman Rodriguez arrived at Miami

International Airport in Miami-Dade County, Florida aboard American

Airlines flight #2386 from New York. On June 28, 2005, at

approximately 11:20 a.m., Roman Rodriguez and another [sic] met

with an Undercover Officer (hereinafter “U/C”), in Miami-Dade

County, Florida. During this meeting, Roman Rodriguez and the U/C

negotiated the details of the purchase of more than five (5) kilograms

of cocaine from the U/C. Roman Rodriguez agreed to purchase

approximately 20 kilograms of cocaine from the U/C at a price of

$18,000 U.S. per kilogram. Roman Rodriguez stated that he was

interested in purchasing the cocaine that would be transported and sold

in the New York area. Roman Rodriguez further stated that he had a

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driver who could transport future deliveries of cocaine, but wanted the

U/C to provide the transportation to New York for the first shipment.

This meeting was audio recorded.

2. During a subsequent conversation, Roman Rodriguez agreed

to use his transportation and to return to Miami on a later date to

complete the initial transaction of cocaine.

3. On July 11, 2005, Roman Rodriguez arrived in Miami to take

possession of the twenty kilograms of cocaine. Roman Rodriguez and

the U/C met in the Miami area at which time Roman Rodriguez

showed the U/C approximately $20,000 U.S. as a down payment

toward the purchase of the 20 kilograms of cocaine.

4. The U/C then drove Roman Rodriguez Fernandez [sic] to an

[sic] warehouse in Coral Gables. At that location, the U/C showed

Roman Rodriguez a bag containing what was represented as 20

kilograms of cocaine (19 kilograms of sham cocaine and one kilogram

of field-tested cocaine). Roman Rodriguez handled one of the sham

kilograms and the kilogram of cocaine. Roman Rodriguez asked the

U/C for a knife with which to cut into the kilogram of cocaine. At that

time, Roman Rodriguez was taken into custody. This transaction was

video and audio taped.

The district court explained the charges against Rodriguez and the

government’s burden of proof. Specifically, the court noted that the government

would have to prove: (1) that two or more people agreed to a plan to possess five

or more kilograms of cocaine; (2) that Rodriguez intended to enter the plan; and (3)

that Rodriguez was working with someone else to make the plan succeed. With

the assistance of an interpreter, Rodriguez confirmed that the factual proffer was

accurate and that he understood the charges against him. Rodriguez also indicated

that he had discussed the charges and possible defenses with his counsel, and he

expressed his desire to accept responsibility for his actions. The district court then

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accepted his guilty plea.

At sentencing, Rodriguez argued that he was entitled to a safety-valve

reduction pursuant to U.S.S.G. § 5C1.2(a) because he provided the government

with all available information relevant to the offense. The district court held an

evidentiary hearing to determine whether Rodriguez provided all information.

The government presented the testimony of Drug Enforcement Agency

Special Agent Julissa Monzon, who was present at Rodriguez’s debriefing.

Monzon testified that Rodriguez identified a man named “Joel” as the person who

introduced him to the transporter. Although Rodriguez stated that he had known

Joel for several years, Rodriguez claimed he did not know his last name.

According to Monzon, Rodriguez also contended that he did not know the

transporter’s name, even though authorities learned that Rodriguez had shared a

motel room with the transporter’s wife prior to his arrest.

Based upon this testimony, the district court found that Rodriguez had not

been forthcoming with all information and denied safety-valve relief. The district

court determined that Rodriguez had an offense level of 31 and a criminal history

category of I, which resulted in an advisory guidelines range of 108 to 138 months’

imprisonment. After rejecting the safety-valve reduction, the district court

imposed the mandatory-minimum sentence of 120 months’ imprisonment under 21

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U.S.C. § 841(b)(1)(A)(ii), five years of supervised release, and $18,000 in criminal

forfeiture. This appeal followed.

II. DISCUSSION

A. Adequate Factual Basis for the Guilty Plea

On appeal, Rodriguez argues that the district court plainly erred under Fed.

R. Crim. P. 11 by failing to ensure that there was an adequate factual basis for the

conspiracy charge before accepting his guilty plea.1 Specifically, Rodriguez

contends that the factual proffer did not support the conspiracy charge because it

did not establish that there was an unlawful agreement between Rodriguez and a

non-government agent.

In order to establish Rodriguez’s conspiracy conviction, the government

had to prove the existence of an agreement between two or more people. See

United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). “If there are only

two members of a conspiracy, neither may be a government agent or informant

who aims to frustrate the conspiracy.” United States v. Arbane, 446 F.3d 1223,

1228 (11th Cir. 2006). The existence of an agreement may be inferred from the

1

When a defendant has not challenged the factual basis of his guilty plea in district court,

we review for plain error. United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). To

establish plain error, Rodriguez must show a reasonable probability that, but for the error, he

would not have entered the plea. See United States v. Dominguez Benitez, 542 U.S. 74, 83, 124

S. Ct. 2333, 2340 (2004).

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defendant’s conduct or from circumstantial evidence of a scheme. Id.

At the plea colloquy, the district court informed Rodriguez that the

government would have to prove that two or more people entered into a plan to

possess five or more kilograms of cocaine. Rodriguez stipulated to the written

factual proffer, which provided, “Roman Rodriguez further stated that he had a

driver who could transport future deliveries of cocaine . . . . During a subsequent

conversation, Roman Rodriguez agreed to use his transportation and to return to

Miami on a later date to complete the initial transaction of cocaine.”

Rodriguez’s claim that the government did not identify another person

involved in the conspiracy besides the undercover officer is belied by the stipulated

facts. In the factual proffer, Rodriguez expressly admitted that he had a driver who

would transport the cocaine and that Rodriguez would use his transportation to

complete the initial transaction. This admission is sufficient to establish the

existence of at least two conspirators. Accordingly, there was an adequate factual

basis for Rodriguez’s guilty plea.2 In any event, Rodriguez cannot show plain

error, and we affirm his convictions.

B. Safety-Valve Reduction

Rodriguez also argues that the district court erred in denying safety-valve

2

Even if the factual proffer had been inadequate, Rodriguez has not shown a reasonable

probability that he would not have entered a guilty plea absent the error.

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relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a).3 The district court’s sole

basis for denying a reduction under § 3553(f) was a finding that Rodriguez had not

provided all information concerning his drug conspiracy.

“Safety-valve relief allows for sentencing without regard to any statutory

minimum, with respect to certain offenses, when specific requirements are met.”

See United States v. Brehm, 442 F.3d 1291, 1299 (11th Cir.), cert. denied, __ U.S.

__, 127 S. Ct. 457 (2006). The parties dispute whether Rodriguez satisfied §

3553(f)(5), which requires that “not later than the time of the sentencing hearing,

the defendant has truthfully provided to the Government all information and

evidence the defendant has concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or plan . . . .” See also U.S.S.G. §

5C1.2(a)(5). This factor is considered a “tell-all provision” in which the defendant

“has an affirmative responsibility to truthfully disclose to the government all

information and evidence that he has about the offense and all relevant conduct.”

United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004) (quotation marks

and citation omitted). Rodriguez bears the burden of showing that he has met all

conditions for the safety-valve reduction. See id.

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“When reviewing a district court’s safety-valve decision, we review for clear error a

district court’s factual determinations . . . [and] de novo the court’s legal interpretation of the

statutes and sentencing guidelines.” See United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir.

2006) (quotation marks and citation omitted).

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Rodriguez contends that he satisfied § 3553(f)(5) by revealing all

information about the offense of conviction because the broader requirement to

reveal “all relevant conduct”4 predated United States v. Booker, 543 U.S. 220, 125

S. Ct. 738 (2005). A sentencing court under Booker still must consider the

guidelines, however, and correctly calculate the guidelines range in the same

manner as the guidelines were interpreted before Booker. See United States v.

Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005); see also Brehm, 442 F.3d at

1300 (“Booker does not render application of individual guideline provisions

advisory because the district court remains obligated correctly to calculate the

Guidelines range . . . .”). Post-Booker, we continue to require defendants to

provide information on all conduct relevant to the offense to qualify for a safety-

valve reduction. See United States v. Milkintas, __ F.3d __, No. 05-13256, 2006

WL 3431875, at *4 (11th Cir. Nov. 30, 2006) (noting that safety-valve relief is

available only if defendants satisfy their burden of “coming forward with all

information in [their] possession that was relevant to the criminal enterprise”).

Information about the identity of Rodriguez’s driver is directly related to his

offense. When the offense is conspiracy to possess with intent to distribute drugs,

4

The sentencing guidelines define “offense or offenses that were part of the same course

of conduct or of a common scheme or plan,” as used in § 5C1.2(a)(5), to mean “the offense of

conviction and all relevant conduct.” See U.S.S.G. § 5C1.2 cmt. n.3.

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the scope of information that must be disclosed includes “information relating to

the involvement of others and to the chain of the narcotics distribution.” United

States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). Rodriguez stipulated in the

factual proffer that “he had a driver who could transport future deliveries of

cocaine.” Rodriguez claimed that he did not know the identity of this transporter,

but Monzon testified that Rodriguez shared a motel room with the transporter’s

wife. Monzon also testified that Rodriguez did not provide the last name or

telephone number for “Joel,” the man who introduced him to the transporter,

despite being friends with “Joel” for several years. In light of this uncontradicted

testimony, the district court reasonably concluded that Rodriguez had not met his

burden to reveal all information relating to the involvement of co-conspirators.

Accordingly, we conclude that the district court did not clearly err in denying

safety-valve relief.

III. CONCLUSION

For the foregoing reasons, we affirm Rodriguez’s convictions and sentence.

AFFIRMED.

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