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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10955
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00240-EAK-AEP-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JHONNY CORLEYIS GUEVARA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 18, 2018)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
Jhonny Corleyis Guevara appeals his 168-month sentence, imposed after he
pled guilty to conspiracy to possess with intent to distribute five kilograms or more
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of cocaine while on board a vessel subject to the jurisdiction of the United States,
in violation of 46 U.S.C. §§ 70503(a), 70506(a) and (b), and 21 U.S.C.
§ 960(b)(1)(B)(ii), and aiding and abetting to possess with intent to distribute five
kilograms or more of cocaine while on board a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. §§ 70503(a) and 70506(a), 18 U.S.C.
§ 2, and 21 U.S.C. § 960(b)(1)(B)(ii). On appeal, Corleyis Guevara argues
that (1) the district court erred in denying him a minor-role reduction pursuant to
United States Sentencing Guidelines (“USSG”) § 3B1.2(b); and (2) his sentence
was unreasonable. After careful review, we affirm.
I.
Corleyis Guevara and his codefendants, Ilcias Artemio Perez De La Cruz
and Carlos Alberto Reyes Rivas, were transporting cocaine on a “go-fast vessel” in
international waters. Corleyis Guevara was the captain. When the United States
Coast Guard approached the boat, the responding officers observed that the go-fast
vessel was “dead in the water in a bale field.” The recovered bales tested positive
for cocaine and weighed about 760 kilograms. Corleyis Guevara admitted “he was
hired to go on a drug run,” “had received an advance payment[,] and before
departing . . . put the bales on board.”
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II.
We review a district court’s decision about whether a defendant qualifies for
a minor-role reduction under the Guidelines for clear error. United States v.
Rodriguez De Varon,
175 F.3d 930, 937 (11th Cir. 1999) (en banc). A defendant
“who is less culpable than most other participants in the criminal activity, but
whose role could not be described as minimal,” is entitled to a two-level reduction
for his minor role. USSG § 3B1.2(b), cmt. n.5. The defendant must prove his
minor role by a preponderance of the evidence. Rodriguez De
Varon, 175 F.3d at
939.
To determine if the defendant qualifies, “the district court must measure the
defendant’s role against the relevant conduct for which [he] was held accountable”
and “may also measure the defendant’s role against the other participants, to the
extent that they are discernable, in [the] relevant conduct.”
Id. at 945. Application
Note 3(C) for Guidelines § 3B1.2 presents a non-exhaustive list of factors that the
court may consider in making this evaluation. USSG § 3B1.2 cmt. n.3(C).
Corleyis Guevara argues he, Perez De La Cruz, and Reyes Rivas were
merely drug couriers and there were other more culpable participants who “hired
the men on the boat,” “organized this venture,” “owned the drugs,” or were going
to “purchas[e] the drugs.” However, “a defendant’s status as a drug courier does
not alter the principle that the district court must assess the defendant’s role in light
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of the relevant conduct attributed to [him]” and is not itself dispositive of whether
a defendant is entitled to the adjustment. Rodriguez De
Varon, 175 F.3d at 942.
“The conduct of participants in any larger criminal conspiracy is irrelevant.”
Id. at
944.
Here, Corleyis Guevara was held accountable for the 760 kilograms of
cocaine that he admitted he loaded onto the boat and attempted to deliver to
purchasers. Because his relevant conduct matched his actual conduct, “he cannot
prove that he is entitled to a minor-role adjustment simply by pointing to some
broader scheme for which he was not held accountable.” See United States v.
Alvarez-Coria,
447 F.3d 1340, 1343 (11th Cir. 2006) (per curiam). And Corleyis
Guevara presented no evidence demonstrating that he was less culpable then Perez
De La Cruz and Reyes Rivas, the only other discernable participants involved in
the relevant conduct. See Rodriguez De
Varon, 175 F.3d at 944–45. Instead,
Corleyis Guevara’s role loading the cocaine and captaining the boat suggested he
understood the scope and structure of the criminal activity in which he was
involved and exercised some authority over it. See USSG § 3B1.2 cmt. n.3(C);
Rodriguez De
Varon, 175 F.3d at 942–43, 945 (counseling courts to consider all
facts to determine a drug courier’s role in the offense and listing factors to
consider). The district court’s denial of the two-level minor-role reduction
therefore was not clear error.
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III.
We review the reasonableness of a sentence for abuse of discretion. Gall v.
United States,
552 U.S. 38, 51,
128 S. Ct. 586, 597 (2007). We first determine
whether the sentence is procedurally unreasonable—that is, whether the district
court committed any “significant procedural error, such as . . . improperly
calculating[] the Guidelines range, treating the Guidelines as mandatory, [or]
failing to consider the [18 U.S.C.] § 3553(a) factors.” 1
Id. If the sentence is
procedurally sound, we determine whether it is substantively reasonable, “tak[ing]
into account the totality of the circumstances.”
Id.
Corleyis Guevara argues his 168-month sentence is procedurally
unreasonable for three reasons: (1) the district court “incorrectly calculated the
guidelines because it erroneously denied an adjustment for minor role,” (2) the
court incorrectly “stated that no variance was available because [Corleyis Guevara]
did not cooperate with [the] government . . . contrary to Booker,” 2 and (3) “the
court failed to adequately consider the 18 U.S.C. § 3553(a) factors.” When
1
The § 3553(a) factors include (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 unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
2
United States v. Booker,
543 U.S. 220,
125 S. Ct. 738 (2005).
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sentencing a defendant, “the district court does not need to discuss or state each
[§ 3553(a)] factor explicitly. An acknowledgment the district court has considered
the defendant’s arguments and the § 3553(a) factors will suffice.” United States v.
Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam) (citation omitted).
There was no procedural error. First, because the district court’s denial of
the minor-role reduction was not error, its Guidelines calculation was correct.
Second, there is no indication the court misunderstood its authority to impose a
variant sentence. Corleyis Guevara offered a number of reasons for requesting a
variant sentence, and the court simply determined “[t]here [was] no basis to
provide a variance.” Third, the district court adequately addressed the § 3553(a)
factors. When imposing the sentence, the court stated it “consider[ed] . . . all the
factors identified in [18 U.S.C. § 3553(a)]” and found “the sentence imposed is
sufficient, but not greater than necessary to comply with the statutory purpose of
sentencing.” Although this is all that is required by our precedent, see
id., the court
also discussed Corleyis Guevara’s age, health, education, work history, and family.
It also noted the seriousness of the offense, observing it involved 760 kilograms of
cocaine.
We next review Corleyis Guevara’s sentence for substantive reasonableness.
A sentence within the Guidelines range is expected to be reasonable, and it is the
defendant’s burden to show otherwise.
Gonzalez, 550 F.3d at 1324. We will
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reverse “if we are left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.” United States v. Clay,
483 F.3d 739, 743 (11th Cir. 2007)
(quotation omitted).
Corleyis Guevara has not shown his sentence was substantively
unreasonable. His Guidelines range of 168 to 210 months was driven primarily by
the drug quantity with which he was charged. The district court appeared to give
the drug amount significant weight at sentencing, repeatedly mentioning the
offense involved 760 kilograms. However, it was within the district court’s
discretion to give more weight to the amount of cocaine involved in the offense
and the need to protect U.S. citizens from its distribution when balancing the
§ 3553(a) factors. See
id. (stating “[t]he weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court”
(quotation omitted)). The district court also explicitly considered other factors,
including Corleyis Guevara’s history and characteristics, as well as how the
educational and vocational programs offered by the Bureau of Prisons could aid
Corleyis Guevara in providing for his family, both while in prison and afterwards.
Finally, Corleyis Guevara’s 168-month sentence is at the lowest end of his
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Guidelines range, which is the kind of sentence we expect to be reasonable. See
Gonzalez, 550 F.3d at 1324.
Corleyis Guevara’s total sentence was procedurally and substantively
reasonable.
AFFIRMED.
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