United States v. Justo Fernando Pomarc , 213 F. App'x 950 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 17, 2007
No. 06-12111 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00385-CR-T-17-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTO FERNANDO POMARC,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 17, 2007)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Justo Fernando Pomarc appeals his concurrent 135-month sentences for
possession with the intent to distribute five or more kilograms of cocaine while
onboard a vessel and conspiracy to possess with the intent to distribute five or
more kilograms of cocaine while onboard a vessel, in violation of 46 App. U.S.C.
§ 1903(a), (g), and (j) and 21 U.S.C. § 960(b)(1)(B)(ii). After review, we affirm
Pomarc’s sentences.
I. BACKGROUND
The United States Coast Guard (“USCG”) spotted a “go fast” boat in
international waters off the coast of Colombia. The go fast boat engaged in
evasive maneuvers while its crew threw bales of cocaine overboard. The USCG
shot and disabled the go fast boat’s engines. Upon boarding the go fast boat, the
USCG found four crew members, including Pomarc, and a captain. The USCG
recovered eight bales of cocaine from the water. Crew member Pedro Vallenquella
stated that the go fast boat had been carrying sixty bales of cocaine. Based on the
weight of the recovered cocaine bales and statements given by the crew, it was
determined that the go fast boat was transporting approximately 1,500 kilograms of
cocaine. After being arrested, Pomarc stated that he had been paid $17,000 prior to
taking the trip and was promised an additional $17,000 upon its completion. He
also confirmed the captain had ordered the crew to jettison the cocaine.
The presentence investigation report (“PSI”) set Pomarc’s base offense level
at 38, pursuant to U.S.S.G. § 2D1.1(c)(1), based on the cocaine on the go-fast boat
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being 150 kilograms or more.1 After a two level safety-valve reduction and a
three-level reduction for acceptance of responsibility, Pomarc’s total offense level
was 33. With a criminal history category of I, the PSI recommended an advisory
guidelines range of 135 to 168 months.
At sentencing, Pomarc argued that he was entitled to a minor-role reduction.
The district court overruled Pomarc’s objection and adopted the guidelines
calculations in the PSI.
Pomarc asked for a sentence at the low end of the guidelines range. In
mitigation, Pomarc stated that he had a family he needed to assist.
The district court sentenced Pomarc to concurrent 135-month sentences. In
arriving at this sentence, the district court stated that it considered the advisory
guidelines range and the 18 U.S.C. § 3553(a) factors. Pomarc filed this appeal.
II. DISCUSSION
On appeal, Pomarc argues that the district court erred by failing to grant him
a minor-role reduction, pursuant to U.S.S.G. § 3B1.2. We review for clear error a
district court’s determination of a defendant’s qualification for a role reduction.
United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The
defendant has the burden of establishing his role in the offense by a preponderance
1
Section 2D1.1(c)(1) provides for an offense level of 38 for 150 kilograms or more of
cocaine. There was no objection to the drug quantity calculation being more than 150 kilograms.
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of the evidence. Id. at 939. Two principles guide a district court’s consideration:
(1) the court must compare the defendant’s role in the offense with the relevant
conduct attributed to him in calculating his base offense level; and (2) the court
may compare the defendant’s conduct to that of other participants involved in the
offense. Id. at 940-45. When 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 scheme for which he was not held
accountable. Id. at 941.
The district court did not clearly err in refusing Pomarc a minor-role
reduction. Under the first prong of De Varon, the district court held Pomarc
accountable for only his own conduct, namely his involvement in the transporting
of the 1,500 kilograms of cocaine, a substantial quantity of drugs. Under the
second prong of De Varon, Pomarc was at least as culpable as his crewmates.
Contrary to Pomarc’s contention, the district court did not operate under a
mistaken belief that drug couriers were per se ineligible for a minor-role reduction.
The district court considered whether a minor-role reduction was appropriate in
Pomarc’s case and determined that it was not.
Pomarc also argues that the district court erred in imposing an unreasonable
sentence, in light of the 18 U.S.C. § 3553(a) factors. Pomarc contends that his
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sentence is too severe given his lack of a criminal history and because he did not
commit his crimes within the United States, but from Colombia, where large
amounts of cocaine are readily available and half the population lives in poverty.
After United States v. Booker, a district court in determining a reasonable
sentence, must consider the correctly calculated sentencing range under the
Sentencing Guidelines and the factors in § 3553(a). See Booker, 543 U.S. 220,
258-64, 125 S. Ct. 738, 764-67 (2005); United States v. Talley, 431 F.3d 784, 786
(11th Cir. 2005). We review the ultimate sentence imposed for unreasonableness
in light of § 3553(a)’s factors and the reasons given by the district court. United
States v. Williams, 435 F.3d 1350, 1354-55 (11th Cir. 2006). The party who
challenges the sentence bears the burden of showing that it is unreasonable.
Talley, 431 F.3d at 788. Although there is no presumption of reasonableness for a
sentence within the advisory guidelines range, when the district court imposes a
guidelines sentence, “we ordinarily will expect that choice to be a reasonable one.”
Id.
After review, Pomarc fails to show that his sentences are unreasonable.
Pomarc’s concurrent 135-month sentences were at the bottom of the advisory
guidelines range and only one year above the ten-year mandatory minimum for his
crimes. See 21 U.S.C. § 960(b)(1)(B)(ii). Apart from the district court’s refusal to
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give a minor-role reduction, Pomarc does not dispute the district court’s guidelines
calculations. The district court considered Pomarc’s arguments in mitigation
regarding his family circumstances. The district court also indicated that it had
considered the § 3553(a) sentencing factors and believed that a sentence at the low-
end of the advisory guidelines range was sufficient but not greater than necessary
to comply with the statutory purposes of sentencing.
Pomarc’s argument that the guidelines were not designed to address the
importation of drugs from other countries is without merit. Part D of the
Sentencing Guidelines explicitly covers offenses involving the importation of
drugs.
AFFIRMED.
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