United States v. Juvencio Salinas Cruz

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 05-14024 MARCH 14, 2006

Non-Argument Calendar THOMAS K. KAHN

CLERK

________________________

D. C. Docket No. 04-00563-CR-T-23-MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUVENCIO SALINAS CRUZ,

a.k.a. Juvencio Slinas Cruz,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(March 14, 2006)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

Juvencio Salinas-Cruz appeals his 135-month sentence for possession with

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

the United States’s jurisdiction, in violation of 46 App. U.S.C. §§ 1903(a), (g); 18

U.S.C. § 2; 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 the

United States’s jurisdiction, in violation of 46 App. U.S.C. §§ 1903(a), (g), & (j),

and 21 U.S.C. § 960(b)(1)(B)(ii). Salinas-Cruz first argues that he should have

received a minor-role reduction pursuant to U.S.S.G. § 3B1.2 because he was less

culpable than the other members of the conspiracy, and because U.S.S.G.

§ 2D1.1(a)(3) is designed to punish couriers of drugs less harshly than buyers and

sellers. According to Salinas-Cruz, U.S.S.G. § 2D1.1(a)(3) challenges the validity

of our ruling in United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en

banc). Salinas-Crus also contends that the district court’s sentence was

unreasonable. The government argues that we lack jurisdiction to consider the

reasonableness of his sentence.

I.

As a preliminary issue, De Varon is still the guiding law in this Circuit, and

we have repeatedly upheld it. See United States v. Boyd, 291 F.3d 1274, 1276-77

(11th Cir. 2002). Moreover, the portion of the sentencing guidelines to which

Salinas-Cruz refers, U.S.S.G. § 2D1.1(a)(3), requires a defendant to first qualify

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for a minor-role reduction. See U.S.S.G. § 2D1.1(a)(3), U.S.S.G. Supp. App. C,

Amend. 640. As the Sentencing Commission specifically adopted and affirmed De

Varon’s analysis for qualification for a minor-role reduction, Salinas-Cruz’s

arguments regarding the application of the guidelines and De Varon are meritless.

U.S.S.G., App. C, Amend. 635.

We have held that a district court’s determination of a defendant’s role in an

offense is a finding of fact, to be reviewed for clear error. De Varon, 175 F.3d at

934. The guidelines allow a court to decrease a defendant’s offense level by two

points if the court finds the defendant was a minor participant. U.S.S.G.

§ 3B1.2(b). A defendant who “is less culpable than most other participants, but

whose role could not be described as minimal” is a minor participant. U.S.S.G.

§ 3B1.2, comment. (n.5). Under the requisite standards articulated in De Varon,

we cannot say that the district court clearly erred in denying the downward

departure here.

II.

In considering Salinas-Cruz’s reasonableness argument, we first note that we

have subject-matter jurisdiction. See United States v. Martinez, No. 05-12706,

slip op. at 999-1000 (11th Cir. Jan. 9, 2006). Sentences imposed under an advisory

guidelines system are reviewed for unreasonableness. With regard to

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reasonableness, we have stated that the district court must first correctly calculate

the defendant’s guideline range, then, using the 18 U.S.C. § 3553(a) sentencing

factors, the court can impose a more severe or more lenient sentence as long as it is

reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). The

§ 3553(a) factors include the available sentences, the applicable guideline range

and policy statements, the nature and circumstances of the offense, and the need

for the sentence to (1) reflect the seriousness of the offense, promote respect for the

law, and provide just punishment for the offense, (2) afford adequate deterrence to

criminal conduct, (3) protect the public from further crimes of the defendant, and

(4) provide the defendant with needed correctional treatment. 18 U.S.C. § 3553(a).

“[N]othing 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, 426 F.3d 1324, 1329 (11th Cir.

2005).

“Review for reasonableness is deferential.” United States v. Talley,431 F.3d

784, 788 (11th Cir. 2005). “[T]he party who challenges the sentence bears the

burden of establishing that the sentence is unreasonable in the light of both th[e]

record and the factors in section 3553(a).” Id. A sentence within the advisory

guidelines range is not per se reasonable, but is expected to be reasonable. See id.

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(“when the district court imposes a sentence within the advisory Guidelines range,

we ordinarily will expect that choice to be a reasonable one.”). We have held that

a district court’s statement that it had considered the § 3553(a) factors alone is

sufficient in post-Booker sentences to indicate that it considered the factors, and

concluded that the defendant’s sentence was reasonable because the district court

accurately calculated the guideline range and the defendant’s sentence at the low

end of the range reflected the court’s consideration of his evidence in mitigation.

See Scott, 426 F.3d at 1330.

In this case, the district court explicitly mentioned the § 3553(a) factors and

accurately calculated the guideline range. Although, the district court noted that it

believed the large quantity of cocaine on the boat justified a guidelines sentence, it

sentenced Salinas-Cruz at the low end of the guidelines range. Based, upon this

record, we cannot say that the sentence imposed was unreasonable.

AFFIRMED.

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