United States v. Jose Rivas Ruiz , 151 F. App'x 831 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 26, 2005
No. 04-13056 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 03-00503-CR-T-24-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RIVAS-RUIZ,
a.k.a. Washington Cifuentes-Guerrero,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 26, 2005)
Before BLACK, WILSON and COX, Circuit Judges.
PER CURIAM:
Appellant Jose Rivas-Ruiz (Rivas), also known as Washington Cifuentes-
Guerrero, a federal prisoner, appeals his convictions and sentences for possession
with intent to distribute five kilograms or more of cocaine while aboard a vessel
subject to the jurisdiction of the United States, in violation of 46 Appx. U.S.C.
§ 1903(a), (g) and 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to distribute five
kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of
the United States, in violation of 46 Appx. U.S.C. § 1903(a), (g), (j) and 21
U.S.C. § 960(b)(1)(B)(ii). On appeal, Rivas argues that (1) the district court erred
in denying him a minor-role reduction, pursuant to U.S.S.G. § 3B1.2; (2) in light
of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United
States v. Booker, 543 U.S. —, 125 S. Ct. 738 (2005), the district court erred in
setting his base offense level at 38, because he did not admit a particular drug
quantity and a jury did not find one beyond a reasonable doubt; and (3) the district
court erred in denying his motion for a downward departure, pursuant to U.S.S.G.
§ 5K2.0. We now affirm Rivas’ conviction and sentence.
I.
Rivas asserts that, in determining whether to award him a minor-role
reduction, the district court erroneously considered only his role as compared to
that of other participants in the offense and did not consider his role in the relevant
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conduct for which he was held accountable at sentencing. He asserts that he was
held accountable for a “broad criminal conspiracy” involving numerous other
people known and unknown to the government and claims that he was less
culpable than other participants.
We review a district court’s determination of a defendant’s role in an
offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). The proponent of a minor-role reduction bears the burden of
proving, by a preponderance of the evidence, that he is entitled to a role reduction.
Id. at 939.
Under U.S.S.G. § 3B1.2(b), a district court can reduce a defendant’s base
offense level by two levels if he was a “minor participant” in the offense. A
defendant is a minor participant when he “is less culpable than most other
participants,” but his role could not be described as minimal. U.S.S.G. § 3B1.2 at
comment. (n.5). In determining a defendant’s role in an offense, a district court
should consider two factors: (1) the defendant’s role in the relevant conduct for
which he has been held accountable at sentencing, and (2) his role as compared to
that of other participants in his relevant conduct. De Varon, 175 F.3d at 940.
With regard to the first factor, drug courier status in and of itself is “not
dispositive of whether a defendant is entitled to or precluded from receiving” a
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minor-role reduction. Id. at 942. In the drug courier context, the amount of drugs
is a “material consideration” in determining the defendant’s role, because 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. In
determining the defendant’s role in the drug courier context, the district court
should consider the “amount of drugs, fair market value of drugs, amount of
money to be paid to the courier, equity interest in the drugs, role in planning the
criminal scheme, and role in the distribution.” Id. at 945.
As to the second factor, the district court should only consider other
participants who are “identifiable or discernable from the evidence.” The fact that
a defendant’s role is less than that of other participants is not dispositive, as it is
possible that none of the participants are minor participants. The defendant must
prove that he was less culpable than most other participants. Id. at 944.
After reviewing the record, we conclude that the district court did not
clearly err in denying Rivas a minor-role reduction. Contrary to Rivas’ assertion,
the district court did consider the first factor of the De Varon test: Rivas’ role in
the relevant conduct for which he was held accountable at sentencing. The court
correctly noted that Rivas was held accountable only for the quantity of cocaine
actually found on the vessel on which he was a crew member. With regard to the
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second factor of the De Varon test, the district court also correctly found that
Rivas was not entitled to a reduction. Rivas did not meet his burden to show that
he was “less culpable than most other participants.” Id. at 944. To the extent that
Rivas points to unidentified other participants in the conspiracy, the district court
was not required to consider Rivas’ role as compared to these people because they
were not “identifiable or discernable from the evidence.” Id. As to those
participants who were identifiable, Rivas could not show that he was less culpable
than the other seven crew members on the vessel, excluding the captain. In fact,
Rivas admitted at sentencing that he played a comparable role to other crew
members.
II.
Rivas argues that, under Blakely/Booker, the district court lacked the
authority to set his base offense level at 38, without a jury determination
concerning the drug quantity and without his consent to judicial factfinding.
Because Rivas did not raise a constitutional objection to the district court’s
application of the sentencing guidelines below, we review this issue for plain error
only.
Assuming the district court erred, and that error was plain, Rivas cannot
show the error affected his substantial rights. See United States v. Rodriguez, 398
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F.3d 1291, 1298 (11th Cir. 2005).1 A defendant’s substantial rights are affected
when there is a reasonable probability that the district court would have imposed a
different sentence if the guidelines were not mandatory. Id. at 1299. The burden
of persuasion is on the defendant. Id. Where the record does not indicate what the
district court would have done if the guidelines were not mandatory, the defendant
has failed to meet his burden. See id. at 1301.
Here, as in Rodriguez, the record provides no indication that the district
court would have imposed a different sentence if it were not constrained by the
mandatory nature of the guidelines. Accordingly, Rivas cannot meet his burden to
show that any Booker error affected his substantial rights.
III.
Rivas argues that the district court may have erroneously concluded that it
lacked the authority to depart downward in sentencing him. He asserts that the
guidelines do not take into account a defendant from another country who will be
serving a lengthy sentence in a foreign country, who does not speak English, and
whose family has no financial resources available to send to him or to use to travel
to visit him.
1
We assume the district court committed both constitutional and statutory Booker error.
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After Booker, our review of decisions regarding downward departures
remains limited. We lack jurisdiction “to consider a defendant’s appeal of a
discretionary decision of the district court to not apply a downward departure, so
long as the district court did not incorrectly believe that it lacked the authority to
apply a departure.” United States v. Winingear, ___ F.3d ___, 2005 WL 2077087,
*3 (11th Cir. Aug. 30, 2005). Such decisions are reviewable, however, if the
district court refused to depart downward because of an erroneous belief that it
lacked the authority to do so. Id. We review de novo the question of whether the
district court erroneously believed it lacked the authority to depart. United States
v. Pressley, 345 F.3d 1205, 1209 (11th Cir. 2003). When nothing in the record
indicates otherwise, we will assume that the trial court understood that it had the
authority to depart. United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999).
The sentencing guidelines allow a district court to depart downward, in
cases other than child crimes and sexual offenses, if the court finds “that there
exists an aggravating or mitigating circumstance, of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in formulating
the guidelines that, should result in a sentence different from that described.”
U.S.S.G. § 5K2.0(a) (Nov. 1, 2003).
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In the instant case, we lack jurisdiction to consider the district court’s
refusal to depart downward because nothing in the record indicates that the district
court believed it lacked the authority to depart. Therefore, we assume that the
district court understood its authority to depart and decline to address this issue.
See Chase, 174 F.3d at 1195.
AFFIRMED.
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