“[Appellant] did not make a specific and contemporaneous objection to either [special condition of his supervised release], and so our review is for plain error.”
How later courts described this case
- “[Appellant] did not make a specific and contemporaneous objection to either [special condition of his supervised release], and so our review is for plain error.”
- “The defendant . . . fails to preserve a legal issue for appeal if the factual predicates of an objection are included in the sentencing record, but were presented to the district court under a different legal theory.” (quotations omitted)
Written by the judges who cited it.
The opinion
USCA11 Case: 21-14021 Document: 28-1 Date Filed: 12/30/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14021
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ERNESTO PEREZ-QUEVEDO,
a.k.a. Acuerpado,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00031-WFJ-SPF-3
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2 Opinion of the Court 21-14021
____________________
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Luis Perez-Quevedo appeals his 210-month sentence after
pleading guilty without a plea agreement to two criminal counts1
stemming from his role in an international cocaine-smuggling
operation that utilized self-propelled semi-submersible (“SPSS”)
vessels to transport large quantities of cocaine from Colombia to
Mexico—with the ultimate goal of getting the drugs into the
United States. He argues that the district court erred during
sentencing by (1) denying him a “minor role” adjustment and (2)
failing to address the factors related to the “minor role”
adjustment.2 In other words, he argues that the district court’s
1
Perez-Quevedo pleaded guilty to (1) “conspiracy to distribute and 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.
§§ 70503(a)(1) and 70506(a) and (b), and 21 U.S.C. § 960(b)(1)(B)(ii); and (2)
“conspiracy to distribute and possess with intent to distribute five kilograms
or more of cocaine knowing, intending, and having reasonable cause to
believe that such substances would be unlawfully imported into the United
States,” in violation of 21 U.S.C. §§ 959, 963, and 960(b)(1)(B)(ii), and 18 U.S.C.
§ 3238.
2
Perez-Quevedo includes only the first argument in his “statement of the
issues” section of his brief. He goes on to argue, however, that “the court
failed in addressing the factors related to the adjustment requiring a reversal.”
Despite the lack of clarity, we consider both arguments.
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21-14021 Opinion of the Court 3
result and process were wrong. After review, we affirm his
sentence.
I. Background
A. Facts
From at least July 2015 through October 2017, Perez-
Quevedo and other individuals participated in a sophisticated drug-
trafficking operation that included building SPSS vessels in
Colombia, loading those vessels with significant quantities of
cocaine, and dispatching those vessels to Mexico to supply
members of the Sinaloa Cartel. The ultimate goal was to distribute
the cocaine in the United States.
This scheme involved multiple stages and it took roughly six
weeks to build each SPSS vessel. First, the organization selected a
construction site within the jungles of Colombia. Second,
temporary housing was constructed for the workers. Third, a
carpentry crew was brought in to complete the wood construction
phase. Fourth, a crew of fiberglass fabricators were brought in for
fiberglass construction. Fifth, mechanics were brought in to install
the engines. Finally, the then-completed SPSS vessel would be
moved to a different location for storage until it was time to load
the vessel with cocaine and dispatch it to Mexico. As a general
matter, workers were not permitted to leave the construction site
until the SPSS vessel was completed, and cell phones were not
allowed on site.
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4 Opinion of the Court 21-14021
Perez-Quevedo had a unique organizational role. After
developing a relationship with two of the organization’s bosses
(Fernando Pineda-Jimenez and Rodrigo Pineda) by “provid[ing]
taxi services” for them for “about a year,” Perez-Quevedo was
offered a role in the drug-trafficking operation. His responsibilities
ranged from “[h]elping in the construction or building of the site
and bedrooms” to “be[ing] in charge of [the] radio” that
communicated with boats bringing materials to the construction
site to facilitating payment between a boss in the organization
(Fernando Pineda-Jimenez) and the head of the fiberglass crew
(Adrian Luna-Munoz). At one point, Perez-Quevedo stopped
working on the construction of the SPSS vessels and began
working for Pineda-Jimenez as a chauffeur as well as someone who
would “stay at the house and [] be responsible for the missus and
for the children, to take them to school” and “just [] be on the alert
to do whatever [Perez-Quevedo] was needed for.”
As it relates to this case, three SPSS vessels were built, loaded
with cocaine, and launched.3 The first of these vessels was
3
The charges against Perez-Quevedo were for his involvement in the
construction of three SPSS vessels. At his sentencing hearing, however, Perez-
Quevedo admitted that he was involved in building four vessels:
[Counsel for defendant]: All of those people are involved in
this conspiracy. And I’m talking only about this three-boat
conspiracy, three semi-submersibles.
The Court: I thought it was four. Your client said four, didn’t
he?
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21-14021 Opinion of the Court 5
interdicted by the Coast Guard on July 18, 2015. On board the
vessel were four crewmembers and approximately 6,900 kilograms
of cocaine.4 The second vessel was interdicted by the Coast Guard
on August 31, 2015. Similar to the first vessel, there were four
crewmembers and approximately 6,845 kilograms of cocaine on
board. The third vessel was interdicted by the Coast Guard on
March 3, 2016. There were four crewmembers and approximately
5,824 kilograms of cocaine on board.
Perez-Quevedo’s involvement was considered to be the
same with each vessel: “Specifically, Perez-Quevedo was involved
in the preparations for this smuggling trip by facilitating operations
at the construction site.”
B. Procedural History
A federal grand jury returned a two-count indictment
naming Perez-Quevedo along with five other individuals for their
involvement in the drug-trafficking operation. In short, Count
One was for conspiracy to possess with intent to distribute five
kilograms or more of cocaine on a vessel subject to the jurisdiction
[Counsel for defendant]: My client said four, yes, but he has
only been charged with three.
The Court: All right.
[Counsel for defendant]: We don’t dispute that he was
involved in four.
4
Because this SPSS vessel sank while being towed after the interdiction, only
5,621 kilograms were recovered.
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6 Opinion of the Court 21-14021
of the United States and Count Two was for conspiracy to import
five kilograms or more of cocaine into the United States.
Perez-Quevedo pleaded guilty to both counts and he was
adjudicated guilty. There was no plea agreement.
The district court held a sentencing hearing to determine the
appropriate sentence for Perez-Quevedo. At this hearing, Perez-
Quevedo raised numerous arguments. As applicable to this appeal,
Perez-Quevedo argued that the district court should apply a
reduction in sentencing because he was a “minor participant.”5
The district court, however, concluded that Perez-Quevedo did
not qualify as a minor participant:
There are indeed people that are superior to [Perez-
Quevedo] in this conspiracy. But there are many,
5
At the district court, Perez-Quevedo also argued that he was entitled to the
“minimal participant” adjustment. On appeal, however, he only argues that
he was a “minor participant.” The “minimal participant” and “minor
participant” adjustments are distinct mitigators under the United States
Sentencing Guidelines. See U.S.S.G. § 3B1.2. A defendant is a “minor
participant” if he is “substantially less culpable than the average participant” in
the criminal activity and “less culpable than most other participants in the
criminal activity, but whose role could not be described as minimal.” Id.
§ 3B1.2, cmt. (n.3(A), 5). Minor participants are entitled to a two-level decrease
in offense level. Id. § 3B1.2(b). The “minimal participant” adjustment is
reserved for individuals who were less involved than “minor participants.”
See id. § 3B1.2, cmt. (n.4). So, even if Perez-Quevedo had raised a “minimal
participant” argument, it would necessarily fail because we conclude that the
district court did not clearly err in denying Perez-Quevedo a “minor
participant” adjustment.
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21-14021 Opinion of the Court 7
many people that are inferior, many people not listed
on that piece of paper, such as the dozen or so or 20
poor saps that rode these boats . . . just pitiful, pitiful
people who were way inferior to your client. Your
client was involved in the construction of four vessels,
massive semi-submersibles. He was trusted by the
boss to look after the boss’s family when the boss was
traveling. He was a driver or the taxi cab driver in a
taxi fleet of one for the underboss who happens to be
the brother of the main boss.
So given his involvement, including operating the
radio telephone or whatever it is, and none of the
other workers of course had access to electronics as
he testified, I decline to find based on De Varon[6] that
he qualifies as a . . . minor role participant.
In addition, the district court considered the fact that Perez-
Quevedo was “tasked with jobs that others [were not]” and
“allowed at the dispatch site where others [were not]” as additional
evidence that he was a “trusted individual.”
In light of the evidence, and in consultation with the United
States Sentencing Guidelines, the district court sentenced Perez-
6
United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc).
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8 Opinion of the Court 21-14021
Quevedo to 210 months’ imprisonment and five years’ supervised
release.7
Importantly, the district court notified defense counsel that
his “well taken objections” would be preserved and asked if there
was “anything else [he] would like to preserve on the record.”
Defense counsel responded, “[n]one other than those made
already.”
Perez-Quevedo timely appealed.
II. Standard of Review
We review the district court’s denial of a role reduction for
clear error. United States v. Valois, 915 F.3d 717, 730 n.8 (11th Cir.
2019); United States v. De Varon, 175 F.3d 930, 934 (11th Cir. 1999)
(en banc). To be clearly erroneous, the district court’s finding must
leave us with a “definite and firm conviction that a mistake has
been committed.” United States v. Rothenberg, 610 F.3d 621, 624
(11th Cir. 2010) (quotations omitted). “The district court’s choice
between two permissible views of the evidence as to the
defendant’s role in the offense will rarely constitute clear error so
long as the basis of the trial court’s decision is supported by the
record and does not involve a misapplication of a rule of law.”
United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016)
7
The total offense level was 37 and Perez-Quevedo fell into criminal history
category I, which yielded an advisory guidelines range of 210 to 262 months’
imprisonment with a supervised release range of two to five years.
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21-14021 Opinion of the Court 9
(quotations omitted & alterations adopted). “The defendant bears
the burden of establishing his minor role in the offense by a
preponderance of the evidence.” Id.
When a party fails to make a specific objection at sentencing
and raises that objection for the first time on appeal, we will review
only for plain error. United States v. Ramirez-Flores, 743 F.3d 816,
821 (11th Cir. 2014).
III. Discussion
Perez-Quevedo argues on appeal that he “should be treated
as a minor participant for his role” in the drug-trafficking operation.
We address (1) whether the district court erred in its determination
that Perez-Quevedo was not a “minor participant” as well as (2)
whether the district court erred in failing to address “the factors
related to the [minor participant] adjustment” which Perez-
Quevedo argues “require[s] a reversal.” We disagree with Perez-
Quevedo on both arguments, and we affirm his sentence.
A. Did the District Court Clearly Err in Determining
that Perez-Quevedo was not a “Minor
Participant?”
The “minor participant” role reduction applies to a
defendant who is “substantially less culpable than the average
participant in the criminal activity” and “less culpable than most
other participants in the criminal activity, but whose role could not
be described as minimal.” U.S.S.G. § 3B1.2, cmt. (n.3(A), 5). In
simple terms, the district court should weigh two considerations:
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10 Opinion of the Court 21-14021
(1) the defendant’s role and (2) his role as compared to the roles of
other participants. De Varon, 175 F.3d at 940. This analysis is “fact-
based” and considers the “totality of the circumstances.” U.S.S.G.
§ 3B1.2, cmt. (n.3(C)); see also Cruickshank, 837 F.3d at 1193–95.
The Sentencing Commission has outlined several factors for
district courts to use as guideposts when conducting this fact-
intensive inquiry:8
(i) the degree to which the defendant understood
the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated
in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making authority or influenced the
exercise of decision-making authority;
(iv) the nature and extent of the defendant’s
participation in the commission of the criminal
activity, including the acts the defendant
performed and the responsibility and
8
As we explained in Cruickshank, these “amendments to the Sentencing
Guidelines . . . further clarify the factors for a court to consider for a minor-
role adjustment, and still continue to embrace the approach we took in De
Varon.” 837 F.3d at 1193. And “[n]ot surprisingly, this non-exhaustive list of
factors includes many of the same factors we delineated in De Varon.” Id. at
1194.
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21-14021 Opinion of the Court 11
discretion the defendant had in performing
those acts; [and]
(v) the degree to which the defendant stood to
benefit from the criminal activity.
U.S.S.G. § 3B1.2, cmt. (n.3(C)). “The court must consider all of
these factors to the extent applicable.” Valois, 915 F.3d at 732.
To begin, it is clear from the record that the district court
considered all the arguments, evidence, and additional information
put before it, including the Presentence Investigation Report
(“PSI”), the defendant’s sentencing memorandum, the defendant’s
testimony at the sentencing hearing, and the testimony of a special
agent for the Department of Homeland Security at the sentencing
hearing. After a thorough inquiry, the district court determined
that Perez-Quevedo did not qualify for the “minor participant” role
reduction for myriad reasons. Some of these reasons included: (1)
Perez-Quevedo’s role in the construction of—by his own
admission—four SPSS vessels, (2) his responsibility for radio
communications while other individuals at the construction site
were not allowed to have cellphones, (3) his role in facilitating
payment for the fiberglass crew, (4) his connection with higher-ups
in the organization and the trust that was placed in Perez-Quevedo
to watch over one of the bosses’ families, and (5) his presence at
the dispatch site where others were not allowed. In addition, the
district court considered Perez-Quevedo’s testimony that he
played a small role in the organization but found that it was not
credible. While the district court did not provide a direct
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12 Opinion of the Court 21-14021
accounting of which evidence went to which factor, the record
makes clear that the district court considered the evidence
pertinent to each factor and was mindful of the Guidelines.9
All in all, the district court determined that Perez-Quevedo
was not less culpable than the average participant. We do not have
to infer this from the district court’s other statements because it
directly addressed Perez-Quevedo’s place in the organizational
hierarchy: “There are indeed people that are superior to [Perez-
Quevedo] . . . . But there are many, many people that are inferior,
many people not listed on that piece of paper, such as the dozen or
so or 20 poor saps that rode these boats . . . who were way inferior
to [Perez-Quevedo].” Further, the district court considered Perez-
Quevedo to be a “trusted individual” who performed tasks that
others—such as the crewmembers and members of the different
construction teams—were not given.
After extensive review, we do not have a “definite and firm
conviction” that the district court made a mistake. Rothenberg,
610 F.3d at 624. Rather, we conclude that the district court did not
clearly err in determining the defendant’s role. See Valois, 915 F.3d
at 732.
9
The district court stated: “So given his involvement, including operating the
radio telephone . . . and none of the other workers of course had access to
electronics as he testified, I decline to find based on De Varon that he qualifies
as a . . . minor role participant. So that objection is overruled.”
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21-14021 Opinion of the Court 13
B. Did the District Court Fail to Consider the Proper
Factors when Determining Perez-Quevedo’s
Role?
Perez-Quevedo also argues that the district court “failed [to
address] the factors related to the adjustment requiring a reversal.”
This argument falls well short.
As an initial matter, this is a new argument. To be sure,
Perez-Quevedo argued below that he should receive a role
reduction. But, given the chance to raise additional objections in
order to preserve “anything else . . . on the record,” Perez-
Quevedo declined. Simply put, Perez-Quevedo preserved his
argument that the district court erred in not granting him a role
reduction, but he has never before argued that the district court
erred by not considering the proper factors. See Ramirez-Flores,
743 F.3d at 821 (“The defendant . . . fails to preserve a legal issue
for appeal if the factual predicates of an objection are included in
the sentencing record, but were presented to the district court
under a different legal theory.” (quotations omitted)). As such, we
must apply a different standard of review—plain error. Id.; see also
United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015)
(“[Appellant] did not make a specific and contemporaneous
objection to either [special condition of his supervised release], and
so our review is for plain error.”).
To establish plain error, the appellant must show that: “(1)
an error occurred; (2) the error was plain; (3) it affected his
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14 Opinion of the Court 21-14021
substantial rights; and (4) it seriously affected the fairness of the
judicial proceedings.” Ramirez-Flores, 743 F.3d at 822.
As discussed above, it is clear from the record that the
district court did in fact consider the proper factors as part of its role
determination—especially considering that Perez-Quevedo’s
arguments, in his sentencing memorandum10 and during the
sentencing hearing, as well as the considerations put forth in the
PSI—were all geared toward the role determination factors.11
As such, he cannot satisfy either of the first two elements—
that an error occurred or that the error was plain—and his
argument must fail. See Ramirez-Flores, 743 F.3d at 822.
IV. Conclusion
The district court was thorough in its sentencing
determination. After careful review, we find that it did not fail to
consider the relevant role determination factors nor clearly err in
ruling that Perez-Quevedo did not qualify for a “minor participant”
role reduction. Thus, we affirm Perez-Quevedo’s sentence.
AFFIRMED.
10
As to Perez-Quevedo’s sentencing memorandum, the district court stated:
“I have received a very good, well structured and well written sentencing
memorandum. I appreciate that.”
11
Near the end of the sentencing hearing, as part of its sentencing explanation,
the district court stated: “After considering the advisory guidelines and all the
factors, I find that this guideline range is sufficient . . .”