United States v. Jose Carlos Merino-Leon , 170 F. App'x 679 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 14, 2006
No. 05-14327
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00638-CR-01-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CARLOS MERINO-LEON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 14, 2006)
Before ANDERSON, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant-Appellant, Jose Carlos Merino-Leon, appeals his sentence of 108
months’ imprisonment for conspiracy to possess with intent to distribute at least
five kilograms of cocaine, in violation of 21 U.S.C. § 846.1 On appeal, Merino-
Leon argues that the district court clearly erred in denying his request for a minor
role reduction. For the reasons that follow, we affirm.
I. Background
Merino-Leon was indicted and pleaded guilty to one count of conspiracy to
possess with intent to distribute cocaine. His co-conspirators included Michael
Gurule, Fausto Gonzalez-Ortiz, Javier Silva and Carlos Quinones. Silva and
Quinones operated the conspiracy and used the remaining co-conspirators to
transport the drugs.
On one occasion, Silva instructed Gurule to drive a truckload of drugs from
New Mexico to Atlanta. On the way, Gurule was stopped by police, and the drugs
were discovered. The police persuaded Gurule to assist in a controlled delivery of
the drugs. As instructed by Silva, Gurule contacted Merino-Leon upon arriving in
Atlanta. Merino-Leon and Gonzalez-Ortiz met Gurule and took the keys to the
truck. The next morning, Merino-Leon and Gonzalez-Ortiz met Ferdinand
Gallegos to transfer the drugs to a second truck. All three were arrested during the
1
Because the district court applied the safety-valve reduction, U.S.S.G. § 5C1.2, to
Merino-Leon’s sentence, he was not subject to the mandatory minimum sentence for his drug
conviction.
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transfer.
The probation officer prepared a presentence investigation report, to which
Merino-Leon filed a single objection, asserting that he was entitled to a reduction
for his minor role in the offense. U.S.S.G. § 3B1.2. At sentencing, he argued that
he was entitled to the reduction because he had no possessory interest in the drugs,
did not organize the operation, did not arrange for the purchase or concealment of
the drugs, and was merely a courier. He further asserted that he was less culpable
than his co-conspirators. The district court overruled Merino-Leon’s objection,
finding that he was held accountable only for his own conduct and that he was not
less culpable than the other participants in the conspiracy. In so ruling, the court
noted the following: (1) Gurule was instructed to contact Merino-Leon upon arrival
in Atlanta; (2) the conspiracy operators apparently trusted Merino-Leon; and (3)
Merino-Leon played an integral role in the conspiracy.
II. Discussion
We review a district court’s determination of a defendant’s entitlement to a
minor role reduction for clear error. United States v. Rodriguez De Varon, 175
F.3d 930, 937 (11th Cir. 1999) (en banc). The proponent of the reduction bears the
burden of proving the mitigating role in the offense by a preponderance of the
evidence. Id. at 939.
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The Sentencing Guidelines permit a court to decrease a defendant’s offense
level by two levels if it finds the defendant was a “minor participant” in the
criminal activity, U.S.S.G § 3B1.2, which means he “is less culpable than most
other participants, but [his] role could not be described as minimal.” U.S.S.G. §
3B1.2, cmt. n. 4-5.
In determining whether a reduction is warranted, a district court “should be
informed by two principles discerned from the Guidelines: first, the defendant’s
role in the relevant conduct for which [he] has been held accountable at sentencing,
and, second, [his] role as compared to that of other participants in [his] relevant
conduct.” De Varon, 175 F.3d at 940. “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 minor role in the offense.” Id. at 944. Such
reductions are to be given infrequently. United States v. Costales, 5 F.3d 480, 486
(11th Cir.1993).
Here, Merino-Leon played an integral role in transporting the drugs. See De
Varon, 175 F.3d at 942-43 (“When a drug courier’s relevant conduct is limited to
[his] own act of importation [or transportation], a district court may legitimately
conclude that the courier played an important or essential role in the importation of
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those drugs.”). Furthermore, Merino-Leon failed to meet his burden in proving
that others who were involved in the relevant conduct attributed to him were more
culpable than he was. Accordingly, the district court did not clearly err in denying
the minor role reduction.
Finally, because Merino-Leon is not entitled to a minor role reduction, he
likewise is not entitled to an additional reduction pursuant to U.S.S.G. §
2D1.1(a)(3), as the latter reduction only applies in cases where a defendant
receives a mitigating role reduction.
III. Conclusion
Because Merino-Leon was held accountable only for those drugs that he
handled, and because he failed to show by a preponderance of the evidence that his
conduct rendered him less culpable than other participants, the district court did not
clearly err by denying his request for a minor role reduction. Accordingly, we
AFFIRM his sentence.
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