United States v. Rigaud Andre , 361 F. App'x 92 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12793 ELEVENTH CIRCUIT
JANUARY 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 08-21040-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RIGAUD ANDRE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 15, 2010)
Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Rigaud Andre (“Andre”) appeals his 121-month sentence after pleading
guilty to importing more than 500 grams of cocaine into the United States, in
violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(B). He argues that: (1) his sentence
is unreasonable because the district court (a) improperly considered the disparity
between the sentence Andre could receive in federal court versus state court, and
(b) the district court failed to give adequate consideration to the need to avoid
unwarranted sentencing disparities; and (2) the district court erred in denying his
request for a minor role reduction.
I.
We review a sentence imposed by a district court for reasonableness. Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). When reviewing the
reasonableness of a sentence, we first must “ensure that the district court
committed no significant procedural error.” Id. After we determine that the
district court’s sentencing decision is procedurally sound, we review the
substantive reasonableness of the sentence under an abuse of discretion standard.
Id. A sentence may be substantively unreasonable if the district court bases the
sentence on impermissible factors or fails to consider pertinent 18 U.S.C. § 3553(a)
factors. United States v. Pugh, 515 F.3d 1179, 1191–92 (11th Cir. 2008) (citation
omitted). Moreover, “[t]he weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court, and [this Court] will
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not substitute [its] judgment in weighing the relevant factors.” United States v.
Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (internal quotations and citation
omitted). Since we review the totality of the circumstances, a district court need
not discuss each § 3553(a) factor. Pugh, 515 F.3d at 1191 n.8; United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam) (“an acknowledgment by
the district court that it has considered the defendant’s arguments and the factors in
Section 3553 is sufficient”).
The appellant has the burden of establishing that the sentence is
unreasonable in light of the record and the § 3553(a) factors. Talley, 431 F.3d at
788. While a sentence within the United States Sentencing Guidelines range
(“Guideline”) is not per se reasonable, we ordinarily expect such a sentence to be
reasonable. Id.A. Andre’s State and Federal Sentence Comparison Argument
Andre argues that his sentence was unreasonable because the district court
gave undue weight to the sentence he could have received in state court while
discussing the 18 U.S.C. § 3553(a)(6). In support of his argument, Andre cites to
our opinion in United States v. Searcy, 132 F.3d 1421 (11th Cir. 1998) (per
curiam) (holding that the district court did not err when it “refused to depart from
Searcy’s applicable [G]uidelines range on the basis of the punishment that would
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be imposed in state court”). Searcy however, does not specifically prohibit a
district court from simply mentioning a state court sentence. See id. We have not
held that any reference to a state court sentence is completely forbidden.
Additionally, the record does not suggest that the district court imposed a sentence
based on state court requirements. Rather, the record reflects that Andre’s sentence
was based on the large quantity of cocaine involved, Andre’s “supervisory
responsibility” over another drug smuggler’s cocaine, Dwayne Nash (“Nash”), and
the fact that Andre had “obstructed justice.” Tr. 80–81. Therefore, Andre has
failed to establish that his sentence is unreasonable.
B. Andre’s Section 3553(a)(6) Argument
Andre argues that the district court failed to adequately consider the
disparity between his sentence and Nash’s sentence. He argues, inter alia, that
because it undisputed that Nash and Andre were convicted of the exact same crime,
the district court erred when it imposed a more harsh sentence on Andre than Nash.
Pursuant to § 3553(a), one of the factors the sentencing court must consider
is the “need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). Because the “avoidance of unwarranted [sentencing] disparities was
clearly considered by the Sentencing Commission when setting the Guidelines
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ranges,” a district court necessarily gives weight and consideration to the need to
avoid unwarranted sentencing disparities when it correctly calculates and carefully
reviews the Guidelines range. Gall, 552 U.S. at 54, 128 S. Ct. at 599. “There is no
unwarranted disparity when the sentence the cooperating defendant receives is
substantially shorter” than sentence of a defendant who does not provide assistance
to the government. See United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir.
2009) (citation and quotation omitted).
The district court accurately determined the applicable Guidelines range, and
sentenced Andre within that range.
Next, we consider whether Andre’s sentence is reasonable. After review, the
record does not support Andre’s contention that his sentence is unreasonable in
comparison with Nash under 3553(a)(6). In light Section 3553(a)(6), the district
court expressly found that Andre and Nash are not similar, but exemplified
different conduct because Nash provided “substantial assistance” to the
government during the investigation. Tr. 79–80. Whereas Nash cooperated with
the government and helped law enforcement build the case against Andre, the
district court noted that Andre did not provide any assistance to the government.
In consideration of the § 3553(a)(6) factor, the district court articulated the
following explanation:
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there are differences between Mr. Nash and Mr. Andre.
Mr. Nash did perform substantial assistance. But for his
naming Mr. Andre as a mule on the plane, the
[g]overnment very well may not have charged Mr.
Andre, may not have held onto him long enough for the
surveillance photos and the janitors to come up with
other evidence that made the case against Mr. Andre
overwhelming.
Tr. 79–80.
At the sentencing hearing, the transcript reflects that the government explained that
without Nash’s cooperation, it “would never have arrested Mr. Andre because he
had dumped all of the cocaine” that he was carrying into the trash. Doc. 44 at 14.
Because Nash and Andre did not engage in similar conduct, Andre has failed to
show that there is a true disparity. The record illustrates that the district court
specifically relied upon these differences in imposing a higher sentence upon
Andre. Indeed, Andre’s within-range sentence is expected to be reasonable, and
Andre has failed to show that it was unreasonable in light of the record and the
§ 3553(a) factors. Talley, 431 F.3d at 788. Accordingly, we find that the district
court gave adequate consideration to the need to avoid unwarranted sentencing
disparities, and any sentencing disparity that resulted between Nash’s and Andre’s
sentences was not unwarranted.
II.
A district court’s determination of a defendant’s role in the offense is a
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finding of fact to be reviewed only for clear error. United States v. Rodriguez De
Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). § 3B1.2 of the Guidelines, if
a defendant was a minor participant in any criminal activity, a two-level reduction
applies. U.S.S.G. § 3B1.2(b). The defendant bears the burden of proving a
mitigating role by a preponderance of the evidence. Rodriguez De Varon, 175 F.3d
at 939. A final determination of the defendant’s role in the offense is the only
specific factual finding that a district court is required to make. Id. at 940.
Notwithstanding our deference to the district court’s discretion, the district court’s
ultimate determination of the defendant’s role in the offense should be informed by
two principles discerned from the Guidelines: (1) the defendant’s role in the
relevant conduct for which he has been held accountable at sentencing, and (2) his
role compared to that of other participants, to the extent that they are discernable,
in his relevant conduct. Id. at 940, 945. Relevant conduct is the conduct that was
used to determine the base offense level. Id. at 941.
Andre argues that the district court erred in denying his request for a minor
role reduction. A review of the record illustrates that the district court did not
commit clear error when it concluded that Andre played more of a role than Nash
in a common plan or scheme to smuggle 8 kilograms of cocaine into the United
States from Haiti. Tr. 75–77. The district court particularly noted that it believed
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“Mr. Andre’s role was a little more than a typical mule.” Tr. 77. Subsequently, it
overruled Andre’s objection to a lack of a minor role reduction. Tr. 77.
We conclude that the district court did not clearly err in denying Andre’s
request for a minor role reduction because it found that Andre had a supervisory
role over Nash.
For the foregoing reasons, Andre has failed to meet his burden to show that
his within-range sentence was unreasonable, and the district court did not clearly
err in failing to apply a minor role reduction. Accordingly, we affirm.
AFFIRMED.
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