United States v. Ivan Arles Ardila-Rengifo , 206 F. App'x 945 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 22, 2006
No. 06-11873 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00411-CR-T-27-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IVAN ARLES ARDILA-RENGIFO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 22, 2006)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Ivan Arles Ardila-Rengifo pled guilty to possession with the intent to
distribute 5 kilograms or more of cocaine, in violation of 46 App. U.S.C. § 1903(a)
and (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to possess
with the intent to distribute 5 kilograms or more of cocaine while aboard a vessel
subject to United States jurisdiction, in violation of 46 App. U.S.C. § 1903(a), (g),
and (j), and 21 U.S.C. § 960(b)(1)(B)(ii). The district court sentenced
Ardila-Rengifo to 144 months’ imprisonment. Ardila-Rengifo raises two issues on
appeal: (1) the district court erroneously found that he was the captain of the vessel
and thus improperly enhanced his sentence on that ground; and (2) his sentence
was unreasonable. For the reasons set forth more fully below, we affirm.
I. Background
The United States Coast Guard (“USCG”) located a “go-fast” vessel in the
Eastern Pacific Ocean and compelled the vessel to stop, using warning shots. The
USCG then boarded the vessel, which they deemed to be without nationality, and
found 99 bales of cocaine, weighing 1,588 kilograms. Four crew members of
Colombian nationality, including Ardila-Rengifo, manned the vessel, but none of
the crew admitted to being the captain. After their arrests, several of the crew
members stated that Ardila-Rengifo was the captain, but that they each took turns
navigating the vessel. At his plea hearing, Ardila-Rengifo admitted that he knew
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that the boat he boarded was carrying drugs and that the purpose of the boat trip
was to deliver cocaine. He further stated that he was to be paid a total of 130
million pesos for his participation in the trip and that he had received 55 million
pesos before the trip began.
A probation officer prepared a presentence investigation report (“PSI”) and,
based upon Ardila-Rengifo’s offense conduct, assigned a base offense level of 38,
pursuant to U.S.S.G. § 2D1.1(c)(1), because Ardila-Rengifo’s offenses involved
more than 150 kilograms of cocaine. Additionally, the probation officer found that
Ardila-Rengifo was the captain of the go-fast vessel and thus increased his base
offense level by two, pursuant to U.S.S.G. § 2D1.1(b)(2)(B). After applying
reductions to Ardila-Rengifo’s offense level based upon Ardila-Rengifo’s
acceptance of responsibility and his eligibility for safety-valve relief under
U.S.S.G. §§ 2D1.1(b)(7) and 5C1.2, the probation officer recommended a total
adjusted offense level of 35. With an offense level of 35, and a criminal history
category of I, Ardila-Rengifo’s guideline range was 168 to 210 months’
imprisonment. His statutory maximum sentence was life imprisonment.
At sentencing, Ardila-Rengifo admitted all the facts as presented in the PSI,
but argued that those facts did not establish that he was the captain of the vessel.
The government responded that Ardila-Rengifo was the captain of the vessel
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because (1) the other crew members made post-arrest statements that
Ardila-Rengifo was the captain, (2) he received 130 million pesos for his
participation in the trip and the other crew members received only 40 million
pesos, and (3) he admitted in his post-arrest statement that he was given
navigational charts, coordinates, GPS receivers, two radios, paper instructions, and
codes before beginning the trip. The court gave Ardila-Rengifo’s counsel an
opportunity to respond to the government’s arguments, but counsel declined and
relied only on his initial statements.
Based upon Ardila-Rengifo’s possession of navigational equipment and the
premium pay that he received for the trip, the court overruled Ardila-Rengifo’s
objection to the two-level captain enhancement. In imposing Ardila-Rengifo’s
sentence, the court noted that it had considered the factors set forth in 18 U.S.C.
§ 3553(a). The court further indicated that,
A 14-year sentence for a 22-year-old man is more than is necessary to
effect the statutory purposes of sentencing. This defendant has pled
guilty, accepted responsibility. He comes from a country with an
economic environment which is nothing short of hopeless. The greed
part entitles him to a long sentence. There’s no question about that.
He comes from a culture that few of us in this country can even begin
to appreciate and understand. He was the captain. He is entitled and
deserves a longer sentence than the other crew members. . . . Having
considered all of these matters, it is the finding of the court that a
sentence within the guideline range is more than necessary to achieve
the statutory purposes of sentencing . . . .
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Thus, the court sentenced Ardila-Rengifo to 144 months’ imprisonment, 24 months
below the low-end of his guideline range and below his statutory maximum of life
imprisonment.
II. Discussion
A. U.S.S.G. § 2D1.1(b)(2)(B)
Ardila-Rengifo argues on appeal that the district court erred in applying the
two-level captain enhancement and in relying on the government’s arguments at
sentencing that were not supported by the record. Specifically, he contends that
there was no evidence to support the government’s arguments that he was provided
with navigational equipment or that he earned more money for his participation in
the drug trip than did the other crew members. He further notes that there was no
evidence establishing that he: (1) had a license to be a captain; (2) piloted the boat;
(3) was listed as the captain; (4) identified himself as the captain; or (5) had the
authority to instruct other crew members.
We review a district court’s findings of fact for clear error and its application
of the Sentencing Guidelines de novo. United States v. Cartwright, 413 F.3d 1295,
1298 (11th Cir. 2005), cert. denied, 126 S.Ct. 1116 (2006). However, where a
defendant raises a sentencing argument for the first time on appeal, we review for
plain error. United States v. Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005). Under
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plain error review, there must be (1) an error, (2) that is plain, and (3) that affects
substantial rights. Id. at 1328-29. If these three prongs are met, we may exercise
our discretion to notice the error if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. at 1329.
The Guidelines provide for a two-level enhancement in a defendant’s
offense level “[i]f the defendant unlawfully imported or exported a controlled
substance under circumstances in which . . . the defendant acted as a pilot, copilot,
captain, navigator . . . aboard any craft or vessel carrying a controlled substance . . .
.” U.S.S.G. § 2D1.1(b)(2)(B). We have not adopted a rigid definition of the term
“captain,” but rather, we look to the facts of each case to determine whether the
enhancement was properly applied. See Cartwright, 413 F.3d at 1298. In
Cartwright, we upheld a captain enhancement where the defendant: (1) admitted he
was a lifelong fisherman; (2) drove the boat at times; (3) followed directions on
where to steer the boat; and (4) used a compass to navigate. Id. at 1299. We
determined that the fact that other crew members also steered the boat did not
negate Cartwright’s enhancement because § 2D1.1(b)(2)(B) specifically included
“copilots.” Id. Moreover, it was not dispositive that Cartwright was not officially
named the captain. Id.
The crux of the issue on appeal here is whether the district court erred in
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relying on the facts that were presented only in the government’s proffer, and, if
so, whether the remaining facts to which Ardila-Rengifo admitted were alone
sufficient to support the enhancement. As to whether the court erred in relying on
the government’s proffer, Ardila-Rengifo raises that issue for the first time on
appeal, and, thus, we review it for plain error. Shelton, 400 F.3d at 1328. The
court’s reliance on the government’s assertions in this case is analogous to the
situation where a court permissibly relies on undisputed facts in the PSI. See
Fed.R.Crim.P. 32(i)(3)(A) (a sentencing court “may accept any undisputed portion
of the presentence report as a finding of fact”); see also United States v. Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989) (“The findings of fact of the sentencing court
may be based on evidence heard during trial, facts admitted by a defendant’s plea
of guilty, undisputed statements in the presentence report, or evidence presented at
the sentencing hearing”). The district court is obligated to resolve disputed issues,
but here, Ardila-Rengifo did not dispute the government’s factual assertions. See
Fed.R.Crim.P. 32(i)(3)(B). In other words, Ardila-Rengifo did not express in any
way that the government’s factual assertions as presented through its proffer were
inaccurate or unreliable. Therefore, by analogy to a court’s ability to permissibly
rely on undisputed facts in a PSI, the court here did not plainly err in relying on the
government’s undisputed factual assertions. Furthermore, it is noteworthy that
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Ardila-Rengifo does not dispute the accuracy of the assertions on appeal, but
argues only that the government did not provide evidence in support of those
assertions.
Accordingly, the district court properly considered Ardila-Rengifo’s
admissions and the government’s undisputed assertions in applying the captain
enhancement. Given that Ardila-Rengifo was paid significantly more than other
crew members, was provided with navigational equipment before the trip, was
considered the captain by the other crew members, and at times drove the boat,
those circumstances are sufficient to warrant the captain enhancement pursuant to
our precedent. See Cartwright, 413 F.3d at 1298-99. The fact that other crew
members also navigated the boat is not dispositive because § 2D1.1(b)(2)(B)
includes “copilots.” See id. at 1299. Thus, the district court did not clearly err in
enhancing Ardila-Rengifo’s offense level by two for his role as a captain.
B. Reasonableness
Ardila-Rengifo argues on appeal that his 144-month sentence was
unreasonable despite the court’s consideration of his young age, background, and
history. He further asserts that his sentence was unreasonable because the court
did not consider: (1) his lack of a criminal history, an education, and money; (2)
his need to raise money for his child and father; and (3) the fact that he participated
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in the drug trip as a way to provide for his family. He maintains that his sentence
was in excess of the minimum necessary to meet the purposes of punishment
required by 18 U.S.C. § 3553(a).
We review final sentences for reasonableness. United States v. Talley, 431
F.3d 784, 786 (11th Cir. 2006). “Review for reasonableness is deferential.” Id. at
788. “[T]he party who challenges the sentence bears the burden of establishing
that the sentence is unreasonable in light of both [the] record and the factors in
section 3553(a).” Id.Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005), we held that, in imposing a sentence, the district court must
first accurately calculate the defendant’s guideline range and second consider the
§ 3553(a) factors to determine a reasonable sentence. Id. at 786. Those factors
include, inter alia, (1) the nature and circumstances of the offense, (2) the history
and characteristics of the defendant, (3) the need for the sentence imposed to
reflect the seriousness of the offense, to afford adequate deterrence, and to protect
the public from future crimes of the defendant, and (4) the need to avoid
unwarranted sentencing disparities among defendants with similar histories who
have committed similar conduct. 18 U.S.C. § 3553(a). However, “nothing in
Booker or elsewhere requires the district court to state on the record that it has
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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).
In reviewing a sentence that was within the guideline range for reasonableness, we
stated that we would “. . . consider the final sentence, in its entirety, in light of the
§ 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)
(citing United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) for the
proposition that “[w]e do not apply the reasonableness standard to each individual
decision made during the sentencing process; rather, we review the final sentence
for reasonableness.”).
As evidenced by the court’s statements made at sentencing, the court
considered many factors in determining an appropriate sentence for
Ardila-Rengifo, including his personal history, his background, and the
circumstances that led him to commit the offense. Based on those considerations,
the court imposed a 144-month sentence, which was 24 months below the low-end
of his guideline range and significantly lower than his statutory maximum of life
imprisonment. Given the court’s detailed consideration of many factors and its
sentence below the applicable guideline range, Ardila-Rengifo’s argument on
appeal, that the court did not consider his personal and familial history, is simply
without merit. Thus, Ardila-Rengifo has not established on appeal that his
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sentence was unreasonable.
III. Conclusion
In light of the foregoing, we conclude that the district court did not clearly
err in enhancing Ardila-Rengifo’s offense level pursuant to U.S.S.G.
§ 2D1.1(b)(2)(B) and that his 144-month sentence was reasonable. Accordingly,
Ardila-Rengifo’s sentence is
AFFIRMED.
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