The opinion
USCA11 Case: 22-12769 Document: 41-1 Date Filed: 07/31/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12769
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OCTAVIO OSUNA-OSORIO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00349-KKM-CPT-4
____________________
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2 Opinion of the Court 22-12769
Before NEWSOM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Octavio Osuna-Osorio appeals his sentence of 135 months’
imprisonment on the ground that the district court clearly erred by
not applying the offense level reduction under U.S.S.G. § 3B1.2(b)
for “a minor participant in any criminal activity.” Osuna-Osoria ar-
gues that the district court did not adequately consider the factors
that bear on the applicability of the minor-role reduction. We disa-
gree and affirm.
Osuna-Osorio pleaded guilty to offenses related to his efforts
to smuggle cocaine on a boat. He was caught on the boat in inter-
national waters with several other men, all of whom were prose-
cuted. In the district court, Osuna-Osorio argued that he should re-
ceive a minor-role reduction under the Sentencing Guidelines be-
cause his role was minor compared with others in the broader con-
spiracy, such as those who grow, package, and own the cocaine:
I don’t think that there’s any question that there is a
lot of levels within these cases and that the people
that are actually on the boat are the most expendable
people in this scenario and certainly the least culpa-
ble, with the least amount of control, have no owner-
ship stake in the drugs, and in this case he was not
even a master, he was really just trying to make sure
that the engines would stay running.
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22-12769 Opinion of the Court 3
After a colloquy with Osuna-Osorio’s counsel and the government,
the district court overruled Osuna-Osorio’s objection with the fol-
lowing statement:
I mean, clearly, we all know somebody has to grow
the drugs and we all know that somebody has to be
in charge of the shipping and there are those people
out there, but he is being held accountable only for
the drugs that were on the vessel, and so for that rea-
son I’m going to overrule the objection and find that
he is substantially--- he’s not substantially less culpa-
ble than the average participant in this boat case or
anybody else on the vessel itself.
The district court then imposed a below-guidelines sentence of 135
months.
Osuna-Osorio’s sole challenge on appeal is to the district
court’s determination that he did not qualify for a minor-role re-
duction. We review a district court’s finding that a defendant
played more than a minor role in criminal activity for clear error.
See United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en
banc). We will disturb a district court’s finding about a defendant’s
role only if “we are left with a definite and firm conviction” that
the district court erred. United States v. Valois, 915 F.3d 717, 731
(11th Cir. 2019). “The court’s choice between two permissible
views of the evidence will rarely constitute clear error, so long as
the basis of the trial court’s decision is supported by the record and
the court did not misapply a rule of law.” Id.
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4 Opinion of the Court 22-12769
Under Section 3B1.2(b), a defendant is entitled to a two-level
reduction if he “was a minor participant in any criminal activity.”
U.S.S.G. § 3B1.2(b). This reduction is “for a defendant who plays a
part in committing the offense that makes him substantially less
culpable than the average participant in the criminal activity.” Id.
§ 3B1.2, cmt. n.3(A). The minor-role reduction applies to a defend-
ant “who is less culpable than most other participants in the crimi-
nal activity, but whose role could not be described as minimal,”
i.e., evidencing a “lack of knowledge or understanding of the scope
and structure of the enterprise and of the activities of others.” Id.
§ 3B1.2, cmt. n.4 & n.5. Whether a defendant qualifies for a minor-
role reduction depends “on the totality of the circumstances and
involves a determination that is heavily dependent on the facts of
the particular case.” Id. § 3B1.2, cmt. n.3(C). A defendant must
prove by a preponderance of the evidence that he played a minor
role in an offense. United States v. Cruickshank, 837 F.3d 1182, 1192
(11th Cir. 2016).
This Court has identified two principles that aid a sentencing
court in determining whether a defendant played a minor role in a
scheme. First, a sentencing court should consider “the defendant’s
role in the relevant conduct for which [he] has been held account-
able at sentencing.” Id. (quoting De Varon, 175 F.3d at 940) (altera-
tion in original). Second, the court should consider the defendant’s
role relative to the roles of other participants in that conduct. Id.
The focus on the relevant conduct for which the defendant is ac-
countable precludes consideration of a defendant’s minor role by
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22-12769 Opinion of the Court 5
comparing him to participants in a larger, uncharged criminal con-
spiracy. United States v. Moran, 778 F.3d 942, 980 (11th Cir. 2015).
Since we identified those two principles, the Sentencing
Commission has provided several factors in a non-exhaustive list
for sentencing courts to consider when determining whether a de-
fendant should receive a minor-role reduction. United States v. Pres-
endieu, 880 F.3d 1228, 1249 (11th Cir. 2018); see also U.S.S.G.
§ 3B1.2, cmt. n.3(C) (listing factors). Those factors are as follows.
First, “the degree to which the defendant understood the scope and
structure of the criminal activity.” Id. § 3B1.2, cmt. n.3(C)(i). Sec-
ond, “the degree to which the defendant participated in planning
or organizing the criminal activity.” Id. § 3B1.2, cmt. n.3(C)(ii).
Third, “the degree to which the defendant exercised decision-mak-
ing authority or influenced the exercise of decision-making author-
ity.” Id. § 3B1.2, cmt. n.3(C)(iii). Fourth, “the nature and extent of
the defendant’s participation in the commission of the criminal ac-
tivity, including the acts the defendant performed and the respon-
sibility and discretion the defendant had in performing those acts.”
Id. § 3B1.2, cmt. n.3(C)(iv). Fifth, “the degree to which the defend-
ant stood to benefit from the criminal activity,” such as whether
the defendant had a proprietary interest in the activity or was
“simply being paid to perform certain tasks.” Id. § 3B1.2, cmt.
n.3(C)(v).
Although our precedent confirms that the two guiding prin-
ciples remain relevant, our precedent also establishes that a district
court misapplies the law if it considers only one of those principles
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6 Opinion of the Court 22-12769
to the exclusion of the other principle and the factors identified by
the Sentencing Commission. See Presendieu, 880 F.3d at 1250. Of
particular relevance here, we have held that it is reversible error for
a district court to deny a minor-role reduction “solely on the
ground that [the defendant] was being held accountable only for
her own actions as opposed to the broader conspiracy.” Id. (quota-
tion marks omitted). If a district court fails to adequately consider
the relevant factors, the proper course is to vacate the defendant’s
sentence and remand with direction to consider the defendant’s
“role in the overall scheme in light of the relevant factors and the
totality of the circumstances.” Presendieu, 880 F.3d at 1250.
Osuna-Osorio argues that the district court here erred by
denying Osuna-Osorio the minor role reduction solely on the
ground that “he is being held accountable only for the drugs that
were on the vessel.” We disagree. This case is not like Presendieu.
The district court here noted that Osuna-Osorio’s sentence would
punish him only for the drugs on the vessel on which he traveled.
But, in doing so, the district court was correctly rejecting Osuna-
Osorio’s argument that it should consider his role in the broader
uncharged conspiracy to grow and distribute the drugs for pur-
poses of assessing a minor role reduction. See Moran, 778 F.3d at
980.
Osuna-Osorio also argues that the district court did not ade-
quately consider the individualized circumstances of his case when
it found that he was “not substantially less culpable than the aver-
age participant in this boat case or anybody else on the vessel
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22-12769 Opinion of the Court 7
itself.” Again, we disagree. During the sentencing hearing, the dis-
trict court conducted an individualized assessment of Osuna-
Osorio’s conduct in light of the factors in U.S.S.G. § 3B1.2, cmt.
n.3(C). The district court began the discussion of Osuna-Osorio’s
objection to the lack of a minor role reduction by noting that he
was recruited to travel from Mexico to the boat’s point of origin,
and he was not “just yanked out of the docks or off the beach.” It
was undisputed that Osuna-Osorio was the mechanic charged with
keeping the boat moving. Based on that fact, the district court
raised a “concern” that Osuna-Osorio had “some kind of expertise
in the engines or . . . some connection with the buyer” and allowed
Osuna-Osorio’s counsel an opportunity to address that concern.
The district court then questioned the government about which
participant captained the boat and the sentences that were imposed
on other boat participants and their roles in the conspiracy. The
district court also inquired about how the various participants were
recruited and the amounts of money that were offered to them.
Ultimately, in light of this discussion, the district court con-
cluded that Osuna-Osorio did not establish that he was substan-
tially less culpable than the average member of the boat’s crew.
Osuna-Osorio does not argue that the district court’s fact-finding
was clearly erroneous. Although the district court did not expressly
walk through the factors in explaining its finding, the Sentencing
Guidelines suggest only that the court consider the factors, not that
it make specific findings as to the factors. Cf. United States v. Lom-
bardo, 35 F.3d 526, 530 (11th Cir. 1994)(holding with respect to res-
titution guideline, if “the record contains sufficient information
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8 Opinion of the Court 22-12769
with respect to the seven factors to permit us to find that the district
court did not clearly err . . . , then we will not reverse merely be-
cause the district court failed to make specific findings on each of
the seven factors”).
For these reasons, Osuna-Osorio’s sentence is AFFIRMED.