United States v. Hetanislao Portocarrero-Quintero , 156 F. App'x 122 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 16, 2005
No. 05-11919
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00438-CR-T-30-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HETANISLAO PORTOCARRERO-QUINTERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 16, 2005)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Hetanislao Portocarrero-Quintero appeals his 135-month sentence for
possession with intent to distribute cocaine and conspiracy to possess with intent to
distribute cocaine while on a vessel subject to the jurisdiction of the United States.
46 App. U.S.C. § 1903(a), (g); 21 U.S.C. § 960(b)(1)(B). Quintero argues that the
district court improperly denied him a role in the offense reduction and that his
sentence was unreasonable because several of his codefendants received 108-
month sentences. We affirm the sentence.
Quintero was indicted with several co-defendants for possession with intent
to distribute five or more kilograms of cocaine while on board a vessel subject to
the jurisdiction of the United States and conspiring to possess with intent to
distribute five or more kilograms of cocaine while on board a vessel subject to the
jurisdiction of the United States, after members of the United States Coast Guard
recovered 600 bales of cocaine from a vessel on which Quintero was a crew
member. Quintero pleaded guilty to the charges in the indictment without the
benefit of a written plea agreement.
At the initial sentencing hearing, Quintero appeared with six co-defendants.
Because he had not been debriefed, Quintero’s sentencing was continued for
several weeks. The remaining co-defendants were sentenced to 108 months of
imprisonment after the court departed downward based on a section 5K1.1
substantial assistance motion made by the government. The district court denied
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the co-defendants any reduction for a minor role in the offense.
At the continued sentencing, Quintero moved for a role reduction because of
his minor role in the offense and a downward departure to make his sentence
consistent with the sentences received by his co-defendants. The government did
not file a substantial assistance motion. The district court denied Quintero a
departure and sentenced Quintero to 135 months of imprisonment. The district
court found that “the sentence imposed at the low end of the advisory guidelines is
sufficient but not greater than necessary to comply with the statutory purposes of
sentencing.”
We review the determination of the sentencing court that a role reduction is
not warranted for clear error. United States v. Rodriguez De Varon, 175 F.3d 930,
937 (11th Cir. 1999) (en banc). We review a sentence imposed after United States
v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), for reasonableness. See United
States v. Scott, __ F.3d __, No. 05-11843, 2005 WL 2351020, at *4 (11th Cir. Sep.
27, 2005).
The defendant bears the burden of proving his minor role by the
preponderance of the evidence. De Varon, at 939. Under the Sentencing
Guidelines, a defendant may receive a two-level reduction in his base offense level
if his role in the offense can be described as minor, or a four-level reduction if his
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role can be described as minimal. U.S.S.G. § 3B1.2(b). A “minimal participant” is
someone who is “plainly among the least culpable of those involved in the conduct
of a group.” U.S.S.G. § 3B1.2, cmt. n.4. A “minor participant” is someone who is
“less culpable than most other participants, but whose role could not be described
as minimal.” U.S.S.G. § 3B1.2, cmt. n.5.
We have held that, when determining a defendant’s entitlement to a role
reduction, the district court should consider (1) the defendant’s role in his relevant
conduct, and (2) his role as compared to that of other participants. De Varon, 175
F.3d at 940. Regarding relevant conduct, “the district court must assess whether
the defendant is a minor or minimal participant in relation to the relevant conduct
attributed to the defendant in calculating [his] base offense level.” Id. at 941.
“[W]here the relevant conduct attributed to a defendant is identical to [his] actual
conduct, [he] cannot prove that [he] is entitled to a minor role adjustment simply
by pointing to some broader criminal scheme in which [he] was a minor participant
but for which [he] was not held accountable.” Id.Regarding other participants, we have held that the district court (1) “should
look to other participants only to the extent that they are identifiable or discernable
from the evidence . . . [and (2)] may consider only those participants who were
involved in the relevant conduct attributed to the defendant. The conduct of
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participants in any larger criminal conspiracy is irrelevant.” Id. at 944. “[A]
defendant is not automatically entitled to a minor role adjustment merely because
[he] is somewhat less culpable than the other discernable participants. Rather, the
district court must determine that the defendant was somewhat less culpable than
most other participants in [his] relevant conduct.” Id.Quintero failed to establish that he was entitled to a role reduction. Because
Quintero was held accountable for the quantity of drugs attributable to his role in
the offense, his relevant conduct was identical to his actual conduct. Quintero also
presented no evidence that he was less culpable than the other crew members on
board the vessel. The district court did not err when it denied him a role reduction.
Quintero also argues that his 135-month sentence was unreasonable because
several of his codefendants received 108-month sentences, after the government
moved for downward departures for substantial assistance on their behalf.
Quintero argues that there was no valid reason for the government not to move for
a downward departure in his case because he had exhibited the same willingness to
cooperate as his codefendants and that the district court erred when it did not
exercise its authority under advisory guidelines to sentence him similarly to his
codefendants. We disagree.
We ordinarily will uphold a sentence imposed after Booker as reasonable if
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the district court considered the factors in section 3553 and sentenced the
defendant within the guideline range. See Scott, __ F.3d at __, 2005 WL 2351020,
at *5. The sentencing transcript reflects that the district court adequately and
properly considered the section 3553 factors when it sentenced Quintero at the low
end of the guideline range. Quintero and his codefendants also were not similarly
situated because the government determined that Quintero did not render
substantial assistance after he pleaded guilty. We conclude that the sentence
imposed was reasonable.
The sentence is
AFFIRMED.
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