United States v. Jesus Tapia ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15852 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 7, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cr-00062-JDW-TBM-5
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
JESUS TAPIA,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 7, 2011)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Jesus Tapia appeals his 108-month sentence, imposed after pleading guilty
to conspiracy to possess with intent to distribute 5 kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal, Tapia argues that the
district court erred in denying his request for a minor-role reduction, pursuant to
U.S.S.G. § 3B1.2(b), by failing to recognize his limited role as a mechanic at the
bottom of the hierarchy, his lack of knowledge or understanding of the scope and
structure of the criminal enterprise, his receipt of a flat-fee payment, and his lack
of an ownership interest in the venture.
We “review a district court’s denial of a role reduction for clear error.”
United States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir.), cert. denied, 130
S.Ct. 2123 (2010). “[T]he proponent of the downward adjustment bears the
burden at all times of establishing [his] role in the offense by a preponderance of
the evidence.” United States v. De Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en
banc). When determining a defendant’s role in the offense, “the district court has
considerable discretion in making this fact-intensive determination . . . .” United
States v. Boyd, 291 F.3d 1274, 1277-78 (11th Cir. 2002). Furthermore, “[i]n
making the ultimate determination of the defendant’s role in the offense, the
sentencing judge has no duty to make any specific subsidiary factual findings.”
De Varon, 175 F.3d at 939. “So long as the district court’s decision is supported
2
by the record and the court clearly resolves any disputed factual issues, a simple
statement of the district court’s conclusion is sufficient.” Id. (emphasis in
original).
When an offense is committed by more than one participant, a role
reduction under U.S.S.G § 3B1.2 may apply, and a defendant may receive a
four-level decrease in his base offense level if his role in the offense was minimal,
a two-level decrease if his role was minor, and a three-level decrease if his role
was somewhere in between. U.S.S.G. § 3B1.2; see also U.S.S.G. § 3B1.2,
comment. (n.2). These reductions are available “for a defendant who plays a part
in committing the offense that makes him substantially less culpable than the
average participant.” U.S.S.G. § 3B1.2, comment. (n.3(A)). Section 3B1.2 of the
Sentencing Guidelines authorizes a district court to reduce a defendant’s offense
level by two levels if the defendant was a “minor participant” in the criminal
activity. U.S.S.G. § 3B1.2(b). A “minor participant” means any participant “who
is less culpable than most other participants, but whose role could not be described
as minimal.” Id., comment. (n.5).
In determining whether a minor-role adjustment applies, the district court
should consider the following two principles. The court should consider “first, the
defendant’s role in the relevant conduct for which [he] has been held accountable
3
at sentencing, and, second, [his] role as compared to that of other participants in
[his] relevant conduct.” De Varon, 175 F.3d at 940. As to the first prong of the
De Varon analysis, we explained that “[o]nly if the defendant can establish that
[he] played a relatively minor role in the conduct for which [he] has already been
held accountable—not a minor role in any larger criminal conspiracy—should the
district court grant a downward adjustment for minor role in the offense.” Id. at
944. With regard to the second prong of the De Varon analysis, we determined
that a district court should look at other participants only to the extent that they
(1) “are identifiable or discernable from the evidence,” and (2) “were involved in
the relevant conduct attributed to the defendant.” Id. In order to satisfy the
second prong, the defendant must show he is less culpable than most other
participants in his relevant conduct. Id. We recognized, however, that the first
prong set forth in De Varon may, in many cases, be dispositive. Id. at 945. In
some cases, even the least culpable participant in the conspiracy will not be
entitled to a minor-role adjustment. Id. at 944.
In general, U.S.S.G. § 1B1.3(a)(1)(B) provides that “in the case of a jointly
undertaken criminal activity,” a defendant’s relevant conduct includes “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the commission of the offense
4
of conviction, in preparation of that offense, or in the course of attempting to
avoid detection or responsibility for that offense.”
The district court did not clearly err in denying Tapia a minor-role reduction
pursuant to U.S.S.G. § 3B1.2(b) because Tapia failed to meet his burden of
showing that his role, as compared to the relevant conduct for which he was held
accountable, was minor. The district court held Tapia accountable only for the
amount of drugs he transported, and he possessed mechanical skills beyond that of
the average person and was the only person able to access the cocaine and money
proceeds hidden in secret compartments in two transportation vehicles critical to
the conspiracy. In addition, the district court correctly concluded that his
culpability, as compared to the other participants in the relevant conduct, was
essentially the same, such that he was not substantially less culpable than the
average participant. Accordingly, we affirm.
AFFIRMED.1
1
Tapia’s Motion for Leave to File Out of Time Reply Brief is GRANTED.
5