United States v. Federico Rosas, a.k.a. Felix , 487 F. App'x 550 ( 2012 )

Case: 11-15388 Date Filed: 08/23/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15388
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00044-SCB-TBM-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
FEDERICO ROSAS,
a.k.a. Felix,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 23, 2012)
Before TJOFLAT, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Federico Rosas appeals his total 60-month sentence, imposed after pleading
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guilty to conspiracy to possess with intent to distribute and distribute five grams or
more of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(viii)
(“Count 1”); aiding and abetting to distribute and possess with intent to distribute
five grams or more of methamphetamine, in violation of 21 U.S.C.
§ 841(b)(1)(B)(viii) and 18 U.S.C. § 2 (“Count 2”); and aiding and abetting to sell
a firearm to a convicted felon, in violation of 18 U.S.C. §§ 922(d)(1), 924(a)(2),
and 2 (“Count 3”). First, Rosas argues that the district court erred in finding that
he was ineligible for safety-valve relief under U.S.S.G. § 5C1.2, based on his
firearm possession and failure to comply with the government’s demand for
information. He claims that his possession of the gun was not “in connection
with” the drug offense, and that his affidavit truthfully disclosed all information he
had concerning the offenses before sentencing. Second, Rosas argues that the
court erred in imposing a two-level enhancement for possession of a firearm under
U.S.S.G. § 2D1.1(b)(1), because mere possession of a firearm is insufficient to
trigger the enhancement. Third, Rosas argues that the court erred in denying
Rosas a two-level reduction based on his minor role in the offense under U.S.S.G.
§ 3B1.2 because he was less culpable than the average participant.
I.
We review the factual findings concerning denial of safety-valve relief for
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clear error. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004). The
district court’s legal interpretation of the Sentencing Guidelines is reviewed de
novo. Id. The defendant bears the burden of proving his eligibility for
safety-valve relief. Id. at 1302.
Under the safety-valve provision, the court may impose a sentence without
regard to the statutory minimum sentence if the following criteria are met: (1) the
defendant has not more than one criminal-history point; (2) the defendant did not
use violence, threats of violence, or possess a firearm or other dangerous weapon
in connection with the offense; (3) the offense did not result in death or serious
bodily injury; (4) the defendant was not a leader or supervisor; and (5) not later
than the time of sentencing, the defendant truthfully provided all information and
evidence to the government relevant to the offense. U.S.S.G. § 5C1.2(a)(1)-(5).
The fifth requirement places on the defendant “an affirmative responsibility
to truthfully disclose to the government all information and evidence that he has
about the offense and all relevant conduct.” Johnson, 375 F.3d at 1302(quotations omitted). If given notice that a defendant is willing to provide
information, the government is under no obligation to solicit such information
from the defendant. United States v. Milkintas, 470 F.3d 1339, 1345-46 (11th Cir.
2006).
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In this case, Rosas fails to demonstrate his eligibility for safety-valve relief.
He did not debrief the government, and further declined an opportunity to testify
regarding the contents of an affidavit he filed the day before the sentencing
hearing. Thus, the court did not clearly err in finding that Rosas did not meet his
burden of showing complete and honest disclosure before sentencing. Because
Rosas did not meet the disclosure requirement of § 5C1.2(a)(5), we find it
unnecessary to decide whether Rosas possessed a firearm “in connection with” the
drug offense under § 5C1.2(a)(2).
II.
We review possession of a firearm for sentencing purposes for clear error.
United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). The Guidelines
provides for a two-level increase “[i]f a dangerous weapon (including a firearm)
was possessed . . . .” U.S.S.G. § 2D1.1(b)(1). We have held that “§ 2D1.1(b)(1)
requires the government to show by a preponderance of the evidence that the
firearm was present at the site of the charged conduct.” United States v. Cooper,
111 F.3d 845, 847 (11th Cir. 1997). The government is not required to prove that
the firearm was used to facilitate the distribution of drugs in order for the firearm
enhancement to apply, as mere presence is sufficient. United States v. Audain, 254
F.3d 1286, 1289 (11th Cir. 2001). If the government is successful in
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demonstrating proximity, the burden shifts to the defendant to show that a
connection between the firearm and the offense is clearly improbable. Id. Failure
to produce such evidence permits a district court to apply the enhancement without
committing clear error. United States v. Hall, 46 F.3d 62, 63-64 (11th Cir. 1995).
Here, it is undisputed that the firearm was present at the site of the charged
conduct of the drug sale, and that Rosas personally delivered both items
simultaneously in the same transaction. Rosas fails to meet his burden of showing
the clear improbability of any connection between the firearm and the drug
offense. Thus, the court did not clearly err in finding that the firearm enhancement
applied.
III.
We review the sentencing court’s determination of a minor role for clear
error. United States v. De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc).
The defendant bears the burden of proving his minor role by the preponderance of
the evidence. Id. at 939. The Guidelines provides for a two-level reduction if the
defendant was a minor participant in the offense. U.S.S.G. § 3B1.2(b). A minor
participant is any participant “who is less culpable than most other participants,
but whose role could not be described as minimal.” Id. § 3B1.2, comment. (n.5).
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Rosas does not dispute that he provided the 12.5 grams of
methamphetamine and the firearm, or that he told an informant who represented
himself as a convicted felon that he could obtain ammunition anywhere. This is
the only conduct attributed to Rosas, and he fails to meet his burden of showing
that he played a minor role in that conduct. Thus, the court did not clearly err in
denying Rosas a minor-role reduction.
Upon review of the entire record on appeal, and after consideration of the
parties’ appellate briefs, we affirm.
AFFIRMED.
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