United States v. Marino Rodallega Arboleda , 180 F. App'x 64 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14575 MAY 2, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00238-CR-T-17TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARINO RODALLEGA ARBOLEDA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 2, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Marino Rodallega Arboleda pled guilty to conspiracy to possess with intent
to distribute and possession with intent to distribute five or more kilograms of
cocaine onboard a vessel subject to United States jurisdiction, in violation of 46
U.S.C. app. § 1903(a), (g), and (j); 21 U.S.C. § 960(b)(1)(B)(ii); and 18 U.S.C. § 2.
The district court sentenced him to two terms of 135 months’ imprisonment to run
concurrently, a $200 special assessment, and two five year terms of supervised
release, also to run concurrently. Arboleda appeals this sentence as well as his
conviction for conspiracy.
Arboleda argues that we should merge his conspiracy conviction with his
conviction for the target crime. Because Arboleda failed to raise this issue in the
district court, we review his claim only for plain error. United States v. White, 416
F.3d 1313, 1316 (11th Cir. 2005) (per curiam).
The Supreme Court has stated that “the conspiracy to commit an offense and
the subsequent commission of that crime normally do not merge into a single
punishable act. Thus, it is well recognized that in most cases separate sentences
can be imposed for the conspiracy to do an act and for the subsequent
accomplishment of that end.” Iannelli v. United States, 420 U.S. 770, 777-78, 95
S. Ct. 1284, 1290, 43 L. Ed. 2d 616 (1975) (internal citations omitted).
Additionally, we have held that convictions for possession of marijuana with intent
to distribute and conspiracy to commit the target offense do not merge. United
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States v. Vasquez, 534 F.2d 1142, 1147 n.2 (5th Cir. 1976).1 Therefore, the district
court did not plainly err by not merging Arboleda’s convictions.
Arboleda next argues that his role was equivalent to a person who offloads a
single drug shipment, and, therefore the district court should have granted him a
minor-role reduction. Arboleda argues that he was one of the least culpable
members of the conspiracy because he did not: (1) finance the transport or
purchase of the cocaine; (2) communicate with the cocaine’s recipient; (3) take
custody of the cocaine by himself; (4) expect to receive payment for the drugs; or
(5) captain or navigate the vessel. Arboleda further argues that the amount of
drugs is not dispositive because the large amount indicates a vast conspiracy of
which he was only a minor participant.
We review the district court’s determination of whether a defendant qualifies
for a minor-role reduction for clear error. United States v. Boyd, 291 F.3d 1274,
1277 (11th Cir. 2002). The reduction’s proponent always bears the burden of
proving entitlement to the reduction by a preponderance of the evidence. United
States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc). The Sentencing
Guidelines permit a court to decrease a defendant’s offense level by two points if it
1
We held in Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) that
decisions the Fifth Circuit handed down prior to the close of business on September 30, 1981,
are binding precedent in the Eleventh Circuit.
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finds that the defendant was a “minor participant” in the criminal activity. U.S.
Sentencing Guidelines Manual § 3B1.2(b). A defendant is a minor participant if he
is “less culpable than most other participants, but [his] role could not be described
as minimal.” U.S. Sentencing Guidelines Manual § 3B1.2, cmt. n.5.
In determining whether a mitigating-role reduction is warranted, a district
court’s decision “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. In
looking to relevant conduct, “the district court must assess whether the defendant is
a minor or minimal participant in relation to the relevant conduct attributed to the
defendant in calculating [his] base offense level.” Id. at 941. In comparing a
defendant’s conduct to that of other participants, “the district court should look to
other participants only to the extent that they are identifiable or discernable from
the evidence.” Id. at 944. In drug-courier cases, the amount of drugs is relevant in
determining minor-role adjustments. Id. at 943.
The 3,731 kilograms of cocaine found on the vessel weighs heavily against
concluding that Arboleda played a minor role. See id. at 943. Other considerations
mitigate against concluding that Arboleda played a minor role, including that:
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(1) Arboleda was one of only eight crew members onboard the vessel when the
Coast Guard found it; and (2) Arboleda knew that the vessel was transporting
cocaine and participated actively in either preparing the hidden compartment or
loading the cocaine. Therefore, the district court did not clearly err in failing to
give a minor role reduction.
Arboleda next argues that the district court committed statutory Booker2
error in sentencing him under a mandatory guidelines scheme. Although the
district court noted that the guidelines were advisory, Arboleda contends that the
district court’s comment regarding its displeasure in keeping him in jail and its
elevation of the guidelines over the other 18 U.S.C. § 3553(a) factors indicates that
the district court considered the guidelines mandatory. Arboleda also argues that
the district court committed constitutional Booker error by holding him responsible
for 3,731 kilograms of cocaine, when he only pled guilty to five kilograms, and by
finding, as a factual matter, that he did not qualify for a minor-role reduction.
Finally, Arboleda argues that his sentence is unreasonable. Specifically, Arboleda
argues that his sentence is greater than necessary because of: (1) his limited role as
a crew member; (2) his personal and criminal history; and (3) the “decreased need
for deterrence in this case.” Arboleda contends that, because of his limited role, he
2
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621(2005).
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was unable to assist the government sufficiently in order to qualify for a reduction
yet was not granted a minor-role reduction.
Because Arboleda sufficiently raised his Booker objection before the district
court, we review the constitutional issue de novo, but will reverse only for a
harmful error. See United States v. Munoz, 430 F.3d 1357, 1373-74 (11th Cir.
2005); United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam). We
have held that, post-Booker, “the district court remains obliged to consult and take
into account the Guidelines in sentencing,. . . [and] [t]his consultation requirement,
at a minimum, obliges the district court to calculate correctly the sentencing range
prescribed by the Guidelines.” United States v. Crawford, 407 F.3d 1174, 1178
(11th Cir. 2005) (emphasis in original) (internal citations and quotations omitted).
We have also held, post-Booker, that a district court may continue to determine
drug quantity based on a preponderance of the evidence, so long as it considers the
guidelines as advisory. See, e.g., United States v. Rodriguez, 398 F.3d 1291, 1296-
97 (11th Cir.), cert. denied, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005); United
States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005). The district court, in
determining a reasonable sentence, is required to take into account the advisory
guidelines range and the§ 3553(a) sentencing factors. See Booker, 543 U.S. at
259-60, 125 S. Ct. at 764-65.
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As discussed above, the district court correctly calculated the guideline
range and did not err in denying Arboleda a minor-role reduction. Additionally,
the district court noted specifically that it considered the guidelines advisory and
was sentencing Arboleda in accordance with Booker. Further, because the
guidelines were applied as advisory, the district court did not err in determining
that Arboleda was responsible for 3,731 kilograms of cocaine. Rodriguez, 398
F.3d at 1297. Accordingly, there was neither constitutional nor statutory Booker
error. See United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
Finally, Arboleda’s sentence was reasonable, as the district court correctly
calculated the guidelines, took the § 3553(a) factors into account, and determined
that the sentence was adequate.3 See United States v. Scott, 426 F.3d 1324, 1329-
30 (11th Cir. 2005).
Upon review of the record, and consideration of the briefs of the parties, we
find no reversible error.
AFFIRMED.
3
Despite the government’s argument to the contrary, we have jurisdiction to
hear Arboleda’s reasonableness claim under 18 U.S.C. § 3742(a)(1). United States
v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006) (per curiam).
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