United States v. Jorge Enrique Bello Terriquez , 150 F. App'x 973 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15517 October 13, 2005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-00182-CR-T-27-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ENRIQUE BELLO TERRIQUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 13, 2005)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Jorge Enrique Bello Terriquez appeals his 135-month sentence imposed after
he pled guilty to possessing 5 kilograms or more of cocaine with the intent to
distribute while using a vessel under the jurisdiction of the United States and for
conspiring to do those activities, in violation of 46 App. U.S.C. § 1903(a), (g), and
(j) and 21 U.S.C. § 960(b)(1)(B)(ii). On appeal, Terriquez argues that the district
court erred by denying him a reduction for a mitigating role in the offense. In
addition, Terriquez argues that the district court violated the Fifth and Sixth
Amendments as defined by United States v. Booker, 543 U.S. ___, 125 S.Ct. 738,
160 L.Ed.2d 621 (2005), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), by considering the Guidelines as mandatory rather
than advisory.
Mitigating-role Reduction
We review a district court’s determination of a defendant’s role in the
offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). The defendant bears the burden of proving that his role in the
offense was minor by a preponderance of the evidence. Id. at 939.
A minor-role reduction of a defendant’s base offense level by two levels is
appropriate where the defendant is less culpable than most other participants, but
where his role could not be described as minimal. U.S.S.G. § 3B1.2, cmt. n.5. A
four-level reduction for playing a minimal role in the offense under U.S.S.G. §
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3B1.2(a) is warranted only if the defendant is “plainly among the least culpable of
those involved in the conduct of a group,” and such a reduction is intended to be
used infrequently. U.S.S.G. § 3B1.2, cmt. n.4. Indicators of a minimal participant
are the “defendant’s lack of knowledge or understanding of the scope and structure
of the enterprise and of the activities of others . . . .” Id. A three-level reduction
may be warranted for a defendant whose conduct falls between these two
standards. U.S.S.G. § 3B1.2.
Two principles guide the district court’s determination of whether to grant a
minor-role reduction. First, the district court must measure the defendant’s role
against the relevant conduct for which he has been held accountable. De Varon,
175 F.3d at 940. The amount of drugs in a courier’s possession may be the best
indication of the magnitude of the courier’s participation in the criminal enterprise.
Id. at 943. “Only 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 a minor role in the offense.” Id. at 944. “[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]
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was not held accountable.” Id. at 941.
Second, the district court may measure the defendant’s culpability in
comparison to that of other participants in the relevant conduct. The district court
should consider other participants only to the extent that they are “identifiable or
discernable from the evidence,” and only if they were “involved in the relevant
conduct attributed to the defendant.” Id. at 944.
In the present case, the district court sentenced Terriquez based on the
activities to which he pled. Terriquez’s relevant conduct and actual conduct were
identical so he has not met the first prong of De Varon. See De Varon 175 F.3d at
941. Terriquez fails to meet the second prong of De Varon because of all the
individuals involved, Terriquez and his codefendants were key members who were
to transport the drugs, and it cannot be said that Terriquez is “plainly among the
least culpable.” Futhermore, Terriquez pled guilty to possessing over 10,000
pounds of cocaine, and this enforces the denial of a mitigating-role reduction.
Id. at 943. Finally, because Terriquez cannot meet the “less culpable than most
other participants” minor-role standard, he cannot meet the standard for a minimal-
role reduction, which states that the defendant must be “plainly among the least
culpable of those involved in the conduct of a group.” U.S.S.G. § 3B1.2, cmt. n.4.
Booker Claim
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In Apprendi v. New Jersey, the United States Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. at 2362-63. In
Blakely v. Washington, the Supreme Court reversed an upward departure under
Washington state’s sentencing guidelines system and held that the relevant
“‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant.” 542 U.S. 296, __, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403(2004).
In Booker, a case involving Blakely’s application to the federal Guidelines,
the Supreme Court held that “the Sixth Amendment as construed in Blakely does
apply to the Sentencing Guidelines.” 543 U.S. at __, 125 S.Ct. at 746. The
Supreme Court also held that, in light of its holding that Blakely does apply to the
Guidelines, 18 U.S.C. § 3553(b)(1) (requiring a sentence within the guideline
range, absent a departure) and 18 U.S.C. § 3742(e) (establishing standards of
review on appeal) must be severed and excised from the Guidelines, rendering the
Guidelines merely advisory. Id. at __, 125 S.Ct. at 756-57. The Supreme Court
held, however, that district courts still must consider the Guidelines. Id. at __,
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125 S.Ct. at 757, 764.
In reviewing a Booker claim, we must first determine whether there is a
preserved objection. See United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir.
2005). Here, Terriquez made a Blakely objection to the application of the
Guidelines in the PSI and at sentencing. Where a defendant timely raised a
Blakely objection in the district court, we review the claim on appeal de novo, but
reverse only for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir.
2005).
The standard for harmless error depends on the type of error that is alleged,
either constitutional error or statutory error. United States v. Mathenia, 409 F.3d
1289, 1291 (11th Cir. 2005) (citing United States v. Shelton, 400 F.3d 1325, 1330-
31 (11th Cir. 2005)). A constitutional error occurs when there is an extra-verdict
enhancement that results in a Guidelines range that is binding on the district court.
Id. A statutory violation occurs when, in the absence of a Sixth Amendment
enhancement violation, the district court sentences under a mandatory Guidelines
scheme. Id. We have held that “constitutional errors are harmless where the
government can show, beyond a reasonable doubt, that the alleged error did not
contribute to the defendant’s ultimate sentence,” and a statutory error is harmless if
it is determined that the proceedings in their entirety did not affect the sentence “or
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had but a very slight effect.” Id. at 1291-92.
Here, Terriquez raises a statutory error, and the district court erred in
sentencing him under the Guidelines as mandatory. Because there is no clear
indication of what sentence the district court would have imposed had it known the
Guidelines were only advisory, the government has not met its burden to show that
the error did not affect the sentence “or had but a very slight effect.” Mathenia,
409 F.3d at 1292. Accordingly, the error was not harmless, and we vacate and
remand.
Conclusion
Upon a review of the record and upon consideration of the parties’ briefs, we
affirm the district court’s denial of a mitigating-role reduction and vacate and
remand for resentencing consistent with the U.S. Supreme Court’s holding in
Booker.
AFFIRMED in part, VACATED AND REMANDED in part.1
1
Terriquez’s request for oral argument is denied.
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