United States v. Jesus Manuel Dorado , 554 F. App'x 825 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15402
Non-Argument Calendar
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D.C. Docket No. 0:11-cr-60147-RNS-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MANUEL DORADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 5, 2014)
Before TJOFLAT, HULL and JORDAN, Circuit Judges.
PER CURIAM:
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After pleading guilty, Jesus Manuel Dorado appeals his 60-month sentence
for conspiracy to encourage and induce aliens to reside in the United States, in
violation of 8 U.S.C. § 1324(a)(1)(A)(iv), (a)(1)(A)(v)(I), and (a)(1)(B)(i), and
conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 1341 and 1349. On
appeal, Dorado argues that the district court: (1) violated Federal Rule of Criminal
Procedure 32 by failing to ensure that Dorado had reviewed his revised
Presentence Investigation Report (“PSI”); (2) clearly erred in refusing to give him
a minor role reduction pursuant to U.S.S.G. § 3B1.2(b); and (3) imposed a
sentence that was substantively unreasonable. After review, we affirm.
I. RULE 32 VIOLATION
Under Rule 32, at sentencing, the district court “must verify that the
defendant and the defendant’s attorney have read and discussed the presentence
report and any addendum to the report.” Fed. R. Crim. P. 32(i)(1)(A). When, as
here, the sentencing error is raised for the first time on appeal, we review only for
plain error. See United States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011).
To prevail under the plain error standard of review, the defendant must show
that “(1) an error occurred, (2) the error was plain, (3) the error affected substantial
rights in that it was prejudicial and not harmless, and (4) the error seriously
affected the fairness, integrity, or public reputation of a judicial proceeding.”
United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011). To show that a
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sentencing error “affected substantial rights,” the defendant must show that but for
the error, there was “a reasonable probability of a lesser sentence.” See United
States v. Underwood, 446 F.3d 1340, 1343-44 (11th Cir. 2006).
Here, the record belies Dorado’s claim that the district court failed to comply
with Rule 32(i)(1)(A). At the beginning of the sentencing hearing, the district
court asked the parties whether they had received and reviewed the PSI. Dorado’s
counsel stated that he had received the revised PSI and addendum on September
21, 2012, and reviewed the addendum, but failed to read “the body” of the revised
PSI “until . . . this morning when I spoke to [Dorado].” The district court also
asked Dorado directly whether he had reviewed the PSI, and Dorado said that he
had reviewed “this one” with his attorney. Under these circumstances, the record
shows that the district court satisfied the requirements of Rule 32(i)(1)(A).
In any event, Dorado cannot show that the alleged error affected his
substantial rights. Dorado does not claim that he did not review the original PSI.
The revised PSI contained only one change. It included two additional criminal
history points because Dorado was on probation while participating in the charged
conspiracies, which changed his criminal history category from II to III. Dorado’s
counsel acknowledged the change in Dorado’s criminal history category from II to
III when the district court questioned him about the revised PSI, and defense
counsel explicitly declined to object to that change as a miscalculation. In fact,
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defense counsel candidly acknowledged that he and the prosecutor had originally
calculated Dorado’s criminal history category as category III—the level in the
revised PSI. Instead, defense counsel argued only that a criminal history category
III overrepresented the seriousness of Dorado’s prior convictions, warranting a
downward variance.1
Moreover, Dorado does not now contend that the additional two criminal
history points in the revised PSI amounts to a miscalculation.2 In fact, Dorado
does not identify any objection to the revised PSI that he could have raised, but did
not, much less an objection that had a “reasonable probability” of being sustained
and lowering his sentence. Dorado argues that his appellate counsel was
“appointed by the court on a cold-record basis, without access to investigative and
other resources available to counsel at the trial level,” and should not be expected
to identify objections to the revised PSI that could have changed the outcome of
his sentencing. However, that is what is required to show plain error.
1
To the extent Dorado suggests he did not have adequate notice of the revised PSI, this
argument is not supported by the record. Defense counsel acknowledged that he had received
the revised PSI on September 21, a full two weeks before the October 5 sentencing hearing, and
had reviewed the PSI addendum at that time. See Fed. R. Crim. P. 32(g) (requiring the probation
officer to submit any revised PSI with the addendum to the court and the parties seven days
before the sentencing hearing).
2
According to undisputed portions of the PSI, Dorado participated in the instant
immigration fraud scheme from December 2007 to July 2009. During this time, on October 13,
2008, Dorado began serving two years’ probation for Florida state court convictions for carrying
a concealed firearm and possessing/selling/delivering alprazolam. Thus, Dorado committed the
instant conspiracy offenses while serving a probation sentence. Under these circumstances, two
points were properly added to Dorado’s criminal history score. See U.S.S.G. § 4A1.1(d).
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II. MINOR ROLE REDUCTION
A defendant receives a two-level reduction in his offense level if he was a
minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). A minor
participant is less culpable than most other participants, but his role could not be
described as minimal. Id., cmt. n.5. The defendant must prove his minor role in
the offense by a preponderance of the evidence. United States v. De Varon, 175
F.3d 930, 939 (11th Cir. 1999) (en banc).3
Whether to apply a minor role reduction “is heavily dependent upon the
facts of the particular case.” U.S.S.G. § 3B1.2, cmt. n.3(C). “Two principles
guide a district court’s consideration: (1) the court must compare the defendant’s
role in the offense with the relevant conduct attributed to him in calculating his
base offense level; and (2) the court may compare the defendant’s conduct to that
of other participants involved in the offense.” United States v. Alvarez-Coria, 447
F.3d 1340, 1343 (11th Cir. 2006). Additionally, as long as the record supports the
district court’s determination and the court clearly resolves any factual disputes,
the court need not make any specific findings other than its ultimate determination
of the defendant’s role in the offense. De Varon, 175 F.3d at 939-40.
As to the second prong, the district court is permitted, but not required, to
“measure the defendant’s conduct against that of other participants” but only
3
A district court’s determination of a defendant’s role in the offense is a finding of fact
that we review for clear error. De Varon, 175 F.3d at 938.
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“where the record evidence is sufficient.” Id. at 934. Furthermore, “[t]he fact that
a defendant’s role may be less than that of other participants engaged in the
relevant conduct may not be dispositive of role in the offense, since it is possible
that none are minor or minimal participants.” Id. at 944. Thus, even if a defendant
played a smaller role in a conspiracy than other co-conspirators, he still may not be
eligible for a role reduction if he played a significant role in the conspiracy.
United States v. Keen, 676 F.3d 981, 997 (11th Cir.), cert. denied, 133 S. Ct. 573
(2012).
On the record before us, we cannot say the district court’s refusal to give
Dorado a two-level minor role reduction was clear error. Dorado served as
director of Seamens Harvest Ministries Organization, Inc. (“SHM”), along with his
mother, codefendant Ana Zoila Caceres, and stepfather, codefendant Alberto Alers.
SHM purported to provide immigration consulting services to the general public by
preparing and filing applications for immigration benefits on behalf of illegal
aliens. Dorado’s ex-girlfriend, codefendant Yvette Rossy Reyes, was one of six or
seven office employees of SHM.
While codefendant Caceres handled SHM’s finances and the day-to-day
operations, Defendant Dorado and codefendant Alers handled consultations with
hundreds of illegal aliens. Dorado and Alers falsely represented to these aliens that
SHM could qualify them for “religious workers” status and extracted “donations”
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and other payments from them. After an alien paid an initial donation and other
fees, Alers, Caceres, Dorado, and codefendant Reyes prepared and mailed the false
immigration paperwork and supporting documentation.
In calculating Defendant Dorado’s offense level, the district court did not
hold Dorado accountable for the total amount of losses from the scheme
($4,078,092.52), but instead only for the losses incurred while Dorado participated
in the scheme ($2,375,944.74). Moreover, Dorado played a significant role as to
the losses attributed to him. In addition to being one of SHM’s directors, Dorado
met personally with the aliens, collected donations and fees from them, falsely
represented to them that he could help them obtain lawful immigration status,
instructed the aliens on steps to take to give the scheme the appearance of
legitimacy, and assisted the aliens in submitting fraudulent immigration
documents.
Dorado complains that the district court failed to analyze the comparative
culpability of Dorado and the other participants in the conspiracy under the second
De Varon prong. Nothing in De Varon requires the district court to reach the
second prong of the analysis. See De Varon, 175 F.3d at 934. Indeed, De Varon
recognizes that, “in many cases,” the first prong “will be dispositive.” Id. at 945.
In addition, the district court is not required to make explicit subsidiary findings;
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rather, “a simple statement” of the district court’s ultimate conclusion as to role is
sufficient. Id. at 939.
Furthermore, the fact that codefendants Caceres and Alers, the masterminds
and leaders of the fraud scheme, were more culpable does not mean Dorado’s role
was minor. And, the record does not support Dorado’s claim that his role was
similar to codefendant Reyes’s role. Reyes was merely a clerical worker,
preparing fraudulent documents and helping Caceres train other office workers to
prepare fraudulent documents. There is no evidence Reyes performed the sort of
“front office” functions that Dorado did, such as meeting with aliens, advising
them, or accepting money from them. Dorado had a greater role in the scheme
than Reyes and was integral to the conspiracy while he participated in it. In sum,
the district court’s conclusion that Dorado played a more than minor role as to the
losses attributed to him is supported by the record.
III. REASONABLENESS
We review the reasonableness of a sentence under the deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). We look first at whether the district court committed any significant
procedural error and then at whether the sentence is substantively unreasonable
under the totality of the circumstances. United States v. Pugh, 515 F.3d 1179,
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1190 (11th Cir. 2008). 4 We will reverse only if “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the [18 U.S.C.] § 3553(a) factors by arriving at a sentence that lies outside the
range of reasonable sentences dictated by the facts of the case.” Id. at 1191
(quotation marks omitted). The party challenging the sentence bears the burden to
show that it is unreasonable in light of the record and the § 3553(a) factors. Id. at
1189. 5
Dorado has not shown that his sentence is substantively unreasonable.
Dorado’s 60-month sentence was below his advisory guidelines range of 78 to 97
months and well below the statutory maximums for either of his offenses (ten years
for the alien conspiracy and twenty years for the mail fraud conspiracy), both
indications that Dorado’s sentence was reasonable. See United States v. Hunt, 526
F.3d 739, 746 (11th Cir. 2008) (stating that, although we do not automatically
presume a sentence within the guidelines range is reasonable, we ordinarily expect
it to be so); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)
4
Apart from the issues already addressed, Dorado does not claim any procedural error
occurred at his sentencing or argue that his sentence is procedurally unreasonable.
5
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).
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(stating that a sentence imposed well below the statutory maximum penalty is an
indication of reasonableness).
The district court heard Dorado’s arguments that his criminal history
category overrepresented the seriousness of his criminal history and explicitly
rejected it. The district court also heard Dorado’s mitigation arguments that he left
the scheme and turned over a new leaf, started a legitimate business, and took sole
custody of his daughter. In imposing the sentence, however, the district court
emphasized the seriousness of Dorado’s offenses and the number of victims
involved. Although Dorado contends that the district court gave too much weight
to the seriousness of his offense, the weight to be accorded the § 3553(a) factors is
committed to the district court’s sound discretion. See United States v. Clay, 483
F.3d 739, 743 (11th Cir. 2007). Moreover, while the district court must consider
all the § 3553(a) factors, it may “attach ‘great weight’ to one factor over others,”
United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009), and is not required to
discuss each factor explicitly, Gonzalez, 550 F.3d at 1237. Considering the totality
of the circumstances, we cannot say the district court abused its discretion in
imposing a 60-month sentence.
AFFIRMED.
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