United States v. Mario Julian Caisano-Guapi , 262 F. App'x 222 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13520 JANUARY 14, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00051-CR-T-26-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO JULIAN CAISANO-GUAPI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 14, 2008)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Mario Julian Caisano-Guapi appeals his 135-month concurrent sentences for
(1) one count of conspiracy to distribute 5 kilograms or more of cocaine while
aboard a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. §§ 70503(a), 70506(a), (b), 21 U.S.C. § 960(b)(1(B)(ii); and (2) one count
of possession with intent to distribute 5 grams or more of cocaine while aboard a
vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C.
§§ 70503(a), 70506(a), 21 U.S.C. § 960(b)(1(B)(ii), 18 U.S.C. § 2. Caisano-Guapi
argues that he should have received a minor-role reduction to his base offense level
because his role as a crew member was minor in comparison to both the extent of
the drug trafficking scheme and the participation of other members of the
conspiracy. Second, Caisano-Guapi argues that the district court imposed an
unreasonable sentence because it failed to consider the statutory factors and,
instead, imposed a guideline sentence. For the reasons set forth more fully below,
we affirm.
On February 4, 2007, the Coast Guard apprehended a speed boat, commonly
referred to as a “go-fast” boat, that did not display any indication of nationality, in
international waters approximately 380 nautical miles southwest of Punta Negra,
Peru. Coast Guard officers boarded the go-fast boat and took the crew, identified
as Ilron Benitez-Aprilla, Amin Hernandez-Perea, Carlos Molano-Valencia,
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Caisano-Guapi, and Jose Luis Huila-Cortes; and 41 bales of cocaine, weighing a
total of 995 kilograms, into custody. From the post-Miranda1 statements of several
crew members, the Coast Guard determined that an individual named “Neron” met
and hired the crew members in Buenaventura, Colombia, and that Hernandez-Perea
was the go-fast boat’s captain. At sentencing, Caisano-Guapi stated that he was
the go-fast boat’s “machinist.”
I.
We review a district court’s denial of a minor-role reduction for clear error.
United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). We
cannot find clear error unless we are “left with a definite and firm conviction that a
mistake has been committed.” United States v. Crawford, 407 F.3d 1174, 1177
(11th Cir. 2005) (quotation marks omitted).
Section 3B1.2(b) of the United States Sentencing Guidelines provides for a
two-level reduction in a defendant’s base offense level if the court determines that
he was a minor participant in the offense. U.S.S.G. § 3B1.2(b). A minor
participant means any participant “who is less culpable than most other
participants, but whose role could not be described as minimal.” U.S.S.G.
§ 3B1.2(b), comment. (n.5); see also De Varon, 175 F.3d at 944. The defendant
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Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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bears the burden of proving by a preponderance of the evidence that he is entitled
to a minor-role adjustment. De Varon, 175 F.3d at 939. Moreover, a conspiracy
can exist in which no participant plays a minor-role. See United States v. Zaccardi,
924 F.2d 201, 203 (11th Cir. 1991).
In determining whether a defendant played a minor role in the offense for
which he has been held accountable, the district court first “must measure the
defendant’s role against the relevant conduct attributed to [him] in calculating [his]
base offense level.” De Varon, 175 F.3d at 944. Second, the district court “may
also measure the defendant’s role against the other participants . . . in that relevant
conduct.” Id. at 945. “[T]he district court may consider only those participants
who were involved in the relevant conduct attributed to the defendant. The
conduct of participants in any larger criminal conspiracy is irrelevant.” Id. at 944.
With respect to the first prong of the De Varon test, Caisano-Guapi failed to
show that he played a minor-role in the relevant conduct for which he was held
accountable at sentencing. Caisano-Guapi’s base level offense was founded on the
transport of 995 kilograms of cocaine. Caisano-Guapi made no objection to the
995 kilograms of cocaine that he possessed on the vessel nor to his participation in
the cocaine’s transport. Therefore, the relevant conduct for which he was held
accountable was identical to his actual conduct in the offense, and his claim fails
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under the first prong of De Varon. Id. at 941.
Indeed, the large amount of cocaine is dispositive. See id. at 943 (“[T]he
amount of drugs imported is a material consideration in assessing a defendant’s
role in [his] relevant conduct . . . . [W]e do not foreclose the possibility that [the]
amount of drugs may be dispositive . . . .”). Caisano-Guapi’s argument that the
large amount of drugs is indicative of a broader conspiracy is contrary to De
Varon, in which we held that the conduct of participants in a broader conspiracy is
irrelevant to the determination of a mitigating role reduction. See id. at 944.
With respect to the second prong of the De Varon test, the evidence is
insufficient to show that Caisano-Guapi was a minor participant in comparison to
other defendants, aside from the boat’s captain. Caisano-Guapi failed to produce
any evidence to distinguish himself from his codefendants in the relevant conduct.
Furthermore, the record does not contain any additional information that would
differentiate Caisano-Guapi from the other crew members of the go-fast boat.
Contrary to Caisano-Guapi’s assertion that the individuals who may have played
roles likely involved in a large drug smuggling operation are “discernable,” the
record does not contain any evidence regarding the existence or identity of any
such individuals, save Neron who hired the crew. Caisano-Guapi failed to prove
by a preponderance of the evidence that he is entitled to a minor-role reduction.
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For all these reasons, the district court did not clearly err by denying Caisano-
Guapi a minor-role reduction.
II.
We have held that, after the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the sentencing court
must not only correctly calculate the guideline imprisonment range, but must treat
that range as advisory and impose a reasonable sentence. United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005). Specifically, the district court must impose a
sentence that is both procedurally and substantively reasonable. United States v.
Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006); Gall v. United States, No.
06-7949, slip op. at 12 (U.S. Dec. 10, 2007).
The Supreme Court has explained that a sentence may be procedurally
unreasonable if the district court improperly calculates the guideline imprisonment
range, treats the Guidelines as mandatory, fails to consider the appropriate
statutory factors, bases the sentence on clearly erroneous facts, or fails to
adequately explain its reasoning. Gall, No. 06-7949, slip op. at 12. The Court also
has explained that the substantive reasonableness of a sentence is reviewed under
an abuse-of-discretion standard. Id. It has suggested that review for substantive
reasonableness under this standard involves inquiring whether the factors in 18
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U.S.C. § 3553(a) support the sentence in question. Gall, No. 06-7949, slip op. at
17. Although the Supreme Court has noted that “a sentence, independently
calculated by the district court in accordance with Booker, that falls within the
properly calculated Guidelines range significantly increases the likelihood that the
sentence is a reasonable one[,]” we do not presume reasonable a sentence within
the properly calculated Guidelines range. United States v. Campbell, 491 F.3d
1306, 1312 (11th Cir. 2007).
Pursuant to § 3553(a), the sentencing court shall impose a sentence
“sufficient, but not greater than necessary” to comply with the purposes of
sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the offense,
promoting respect for the law, providing just punishment for the offense, deterring
criminal conduct, protecting the public from future criminal conduct by the
defendant, and providing the defendant with needed educational or vocational
training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the
sentencing court to consider certain factors, including the nature and circumstances
of the offense, the history and characteristics of the defendant, the guideline
imprisonment range, and the need to avoid unwarranted sentencing disparities. See
18 U.S.C. § 3553(a)(1), (4), and (6).
In considering the § 3553(a) factors and explaining the reasoning behind its
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choice of sentence, this Court has held that the district court need not discuss, or
state that it has explicitly considered, each factor of § 3553(a). Talley, 431 F.3d at
786. Instead, this Court has held that an explicit acknowledgment that the district
court has considered the defendant’s arguments and the § 3553(a) factors will
suffice. United States v. Scott, 436 F.3d 1324, 1329-30 (11th Cir. 2005); see also
Rita v. United States, 551 U.S. __, 127 S. Ct. 2456, 2469, 168 L. Ed. 2d 203 (2007)
(holding that the defendant’s sentence was reasonable when the district court
considered the parties’ arguments and provided a reasoned basis for its choice of
sentence).
Here, the district court imposed a procedurally reasonable sentence. See
Hunt, 459 F.3d at 1182 n.3; Gall, No. 06-7949, slip op. at 12. The district court
correctly calculated the guideline imprisonment range, as discussed above, and
considered the statutory factors. See Gall, No. 06-7949, slip op. at 12. Regarding
the statutory factors, the district court heard Caisano-Guapi’s request for a
downward variance based upon his 4-year-old son’s medical condition and
treatment. 18 U.S.C. § 3553(a)(1). The district court explicitly acknowledged that
it had considered the § 3553(a) factors. See Scott, 436 F.3d at 1329-30. The
district court likewise sufficiently explained its reasoning. See Gall, No. 06-7949,
slip op. at 12. Specifically, in emphasizing the large quantity of cocaine, it
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acknowledged the seriousness of the crime and the need for deterrence. 18 U.S.C.
§ 3553(a)(2).
The district court also imposed a substantively reasonable sentence. See
Hunt, 459 F.3d at 1182 n.3; Gall, No. 06-7949, slip op. at 12. The district court
was influenced by the seriousness of the offense and the need to impose a sentence
sufficient to deter future drug-smuggling crimes. In its discretion, a sentence at the
bottom of the guideline sentencing range accomplished these goals. Therefore, the
§ 3553(a) factors supported the district court’s sentence, and the district court did
not abuse its discretion. See Gall, No. 06-7949, slip op. at 12, 20. Because the
district court considered the appropriate factors and appropriately exercised its
discretion, it imposed a reasonable sentence.
In light of the foregoing, Caisano-Guapi’s sentence is
AFFIRMED.
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