The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 18, 2006
No. 06-10842 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00332-CR-T-24-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCOS VALENZELA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 18, 2006)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Marcos Valenzela appeals his concurrent 144-month sentences for
conspiracy to possess with intent to distribute five kilograms or more of cocaine
while aboard a vessel subject to the jurisdiction of the United States, in violation of
46 U.S.C. app. § 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii), and possession
with intent to distribute 5 kilograms or more of cocaine, in violation of 46 U.S.C.
app. § 1903(a), (g), 21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C. § 2. On appeal, he
argues that the district court erred by denying him a minor-role reduction and by
imposing an unreasonable sentence. For the reasons set forth more fully below, we
affirm.
Valenzela pled guilty to both of the above-mentioned charges. According to
the Presentence Investigation Report (“PSI”), on August 3, 2005, the United States
Coast Guard, using warning shots and disabling fire, intercepted and boarded a go-
fast vessel that contained over 525 kilograms of cocaine. Following his arrest,
Valenzela, who claimed Mexican citizenship, stated that he had traveled to Belize
on three occasions to transport cocaine from Colombia, and that he transported
cocaine for the money. He was hired to “protect the cocaine” on the trips and was
paid $10,000 in U.S. currency to protect the cocaine on the August 2005 trip.
In preparing the PSI, the probation officer held Valenzela accountable for
525 kilograms of cocaine and assigned a total offense level of 33 and a criminal
2
history category of I, which produced a Guideline imprisonment range of 135-168
months’ imprisonment. No adjustment was made for Valenzela’s role in the
offense. Valenzela moved for a “downward departure” on the ground that he acted
only as a minor participant.
At sentencing, Valenzela testified that he was not paid anything for the trip
during which he was arrested, but was paid about $2,000 in expense money to
travel from Mexico to Colombia. He had also made two previous trips. He was
paid $20,000 for the first trip. He tried to avoid the second trip by stabbing himself
in the ribs with a knife, but went after they called him and “practically forced” him
to go. Valenzela explained that he did not want to go on the third trip, but was told
that, after that trip, he would be paid for that trip and the second trip. Valenzela
also stated that these people, at one point, hunted him down at his mother’s
residence. Valenzela explained that he had “practically nothing” to do on the boat.
His responsibility was to safeguard the drugs, which required him just to “be there”
until they arrived at their destination. He did not load the boat or participate in any
sailing activities. Valenzela explained that he was paid $20,000 for the first trip
and received $10,000 for the second trip, but was told that he would be paid more.
He was not told how much he would be paid for the second or third trips, but he
expected to receive $20,000 per trip.
3
Valenzela, through counsel, argued that his duties were very simple and,
recognizing that he “scores out to a range of 135-plus months,” asked the district
court to depart to a level of 108 months’ imprisonment and to consider (1) its
lenient treatment of a codefendant who seemed to have a very minor role on the
boat, and (2) evidence of Valenzela’s attempt to avoid making a trip and the
pressure put on him to go. The district court, noting that Valenzela’s motion was
framed in terms of a departure, denied the motion. The court noted that the amount
of money Valenzela received or expected to receive – $20,000 per trip and $2,000
in expenses – and concluded that Valenzela’s testimony that he really did not do
anything was disingenuous. The district court adopted the Guideline calculations
and facts in the PSI. After considering the advisory Guidelines and 18 U.S.C.
§ 3553, the district court imposed a 144-month sentence, stating that it was
appropriate considering Valenzela’s role in the offense and the fact that it was not
the first time that Valenzela participated in such a venture.
Based primarily upon his lack of duties on the boat, as well as the fact that
he was not paid for the third trip and had been subject to duress, Valenzela first
argues that the district court clearly erred in not granting a minor-role adjustment.
He contends that, in contravention of United States v. De Varon, 175 F.3d 930
(11th Cir. 1999) (en banc), the district court failed to consider that he was not paid
4
for the trip, had no equity interest in the drugs, and had no role in planning the
criminal scheme.
We review the district court’s interpretation of the Guidelines de novo and
its factual findings for clear error. United States v. Ellis, 419 F.3d 1189, 1192
(11th Cir. 2005). “[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.” De Varon, 175
F.3d at 937.1 “The defendant bears the burden of proving his minor role by a
preponderance of the evidence.” United States v. Boyd, 291 F.3d 1274, 1277 (11th
Cir. 2002). Under U.S.S.G. § 3B1.2(b), a defendant qualifies for a two-level
reduction to his offense level if he was a minor participant in the offense. U.S.S.G.
§ 3B1.2(b). The Guidelines further define a minor participant as one “who is less
culpable than most other participants, but whose role could not be described as
minimal.” Id., comment. (n.5).
As we clarified in De Varon, when determining whether a minor-role
reduction is warranted, a district court should consider (1) whether the defendant
played a minor role in relation to the relevant conduct for which he was held
1
Although the government argues that our review should be for plain error because
Valenzela never requested a minor-role adjustment nor questioned the district court’s calculation
of his offense level, we decline to decide the issue as Valenzela cannot show clear error. Cf.
United States v. Nyhuis, 8 F.3d 731, 744 (11th Cir. 1993) (declining to decide if defendant
waived issue by failing to raise a sufficient objection because her argument was without merit).
5
accountable and (2) where appropriate, the culpability of the defendant as
measured against that of other participants in the relevant conduct. De Varon, 175
F.3d at 940, 944. “[W]hen a drug courier’s relevant conduct is limited to [his] 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.” Id. at 942-
43.
Here, it cannot be said that the district court clearly erred by denying
Valenzela a minor-role reduction. Applying the first part of De Varon, the relevant
conduct for which he was held accountable was the 525 kilograms of cocaine
aboard the go-fast boat. In addition, Valenzela stated that he was hired to protect
or safeguard the cocaine. In light of his testimony that he had earned $20,000 on
his first trip and expected to make the same amount on each of his subsequent two
trips, the district court did not clearly err in rejecting Valenzela’s assertions as to
his minimal role. With respect to the second part of the De Varon analysis, the
only other participants discernable from the evidence and involved in the relevant
conduct were the three other crew members. The PSI identified Federman Madera-
Lopez as the captain of the vessel. Valenzela offered no testimony as to Rafael
Puertas-Moncada and Edin Alfonso Martinez-Espita’s duties on the boat.
Furthermore, Valenzela expected to be paid over twice as much as Martinez-
6
Espita, a sea taxi driver, was offered. Furthermore, the district court “is not
required to make any specific findings other than the ultimate determination of the
defendant’s role in the offense,” De Varon, 175 F.3d at 940. Even in the absence
of an equity interest or a planning role, given the factors considered by the court,
the district court’s refusal to grant a role reduction was not clearly erroneous.
Based on his testimony that he was not paid for the trip on which he was
arrested, had attempted to avoid a trip in the past but was “practically forced” to
go, and had limited duties on the boat, Valenzela next argues that his sentence was
unreasonable in light of his history and characteristics and other § 3553(a) factors.
Valenzela further argues that his sentence was unreasonable because:
(1) codefendant Puertas-Moncada was sentenced to 70 months’ imprisonment;
(2) it did not provide just punishment for the offense; and (3) his requested 108-
month sentence was sufficient to comply with the purpose of § 3553(a).
We review the final sentence imposed by the district court for
reasonableness.2 United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.
2005). The district court’s imposition of a sentence is guided by the Guideline
calculations and the factors outlined in 18 U.S.C. § 3553(a). United States v.
2
The government again argues that our review is for plain error because Valenzela failed
to object to the reasonableness of his sentence or the court’s consideration of the § 3553(a)
factors. As Valenzela cannot show that his sentence was unreasonable, we decline to decide this
issue.
7
Talley, 431 F.3d 784, 786 (11th Cir. 2005). The § 3553(a) factors take into
account:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. “[T]here is a range of reasonable sentences from which the district court may
choose.” Id. at 788. While a sentence within the advisory Guidelines range is not,
per se, a reasonable sentence, we ordinarily expect such a sentence to be
reasonable. Id. at 787-88. The burden of establishing that the sentence is
unreasonable in light of the record and the § 3553(a) factors lies with the party
challenging the sentence. Id. at 788.
Here, Valenzela cannot meet his burden. Given his past participation in drug
transportation and his role in the offense safeguarding the drugs, we hold that
Valenzela’s 144-month sentence, towards the low end of the advisory Guideline
range, was not unreasonable. We note that, although he testified that he was not
paid for the trip, Valenzela testified that he expected to be paid $20,000. Although
Valenzela testified that, at least at one point, he tried to avoid a trip but was
8
pressured to go, in a post-arrest statement, he indicated that he transported cocaine
for the money. Moreover as to this final trip, Valenzela’s testimony suggests that,
although he did not want to go, he went for the money. Finally, the district court
rejected Valenzela’s testimony regarding his minimal role aboard the boat.
In light of the foregoing, the district court is
AFFIRMED.
9