United States v. Carlos Agosto Tunorio Arroyo , 182 F. App'x 887 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16444 MAY 17, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00085-CR-T-30-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS AGOSTO TUNORIO ARROYO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 17, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Carlos Agosto Tunorio Arroyo appeals his sentence for two drug trafficking
convictions. Arroyo argues that the district court clearly erred when it found
Arroyo was not a minor participant in the offense. See U.S.S.G. § 3B1.2(b). We
affirm.
On February 17, 2005, the U.S. Coast Guard stopped the fishing vessel
Ranger Yacht with Arroyo and several other crew members on board. The Coast
Guard discovered approximately 4309 kilograms of cocaine in a hidden
compartment. Each crew member was arrested and charged with conspiracy to
possess and possession with intent to distribute five kilograms or more of cocaine
while aboard a vessel subject to the jurisdiction of the United States, 46 U.S.C.
app. §§ 1903(a), (g), (j); 21 U.S.C. § 960(b)(1)(B)(ii).
Arroyo pleaded guilty to both counts of the indictment. At his sentencing
hearing, Arroyo admitted that he knew he would be participating in illegal activity
when he boarded the boat, he helped load cocaine onto the boat, and he was
promised payment of 35 million pesos for his participation. The Presentence
Investigation Report calculated a base offense level of 38, see U.S.S.G. § 2D1.1(c),
and recommended a decrease of two levels under the “safety valve” provision, see
U.S.S.G. § 2D1.1(b)(7) (2005), and a three-level decrease for acceptance of
responsibility, see U.S.S.G. § 3E1.1. Arroyo’s total offense level was 33, with a
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criminal history category of I; his guidelines sentencing range was 135 to 168
months of imprisonment.
Arroyo admitted the factual account of the Presentence Investigation Report,
but he argued that he was entitled to a two-level decrease for having a minor role in
the offense. See U.S.S.G. § 3B1.2. The district court disagreed and found that
Arroyo “played more than a minor role in the offense and is therefore not entitled
to the two-level reduction.” The district court sentenced Arroyo to 135 months of
imprisonment.
“[A] district court’s determination of a defendant’s role in the offense is a
finding of fact to be reviewed only for clear error.” United States v. De Varon, 175
F.3d 930, 937 (11th Cir. 1999) (en banc). The guidelines define “minor
participant” as one “who is less culpable than most other participants, but whose
role could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. n.5. “The
defendant bears the burden of proving his minor role by a preponderance of the
evidence.” United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002). “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.” De Varon, 175 F.3d at 944.
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Arroyo admitted that he was a crew member on the Ranger Yacht, and he
presented no evidence that the other crew members had a more active role in the
criminal activity than Arroyo. Arroyo’s argument in favor of the departure for
being a minor participant was limited to the comments of his counsel, which is
insufficient to support a departure. See United States v. Kapelushnik, 306 F.3d
1090, 1095 (11th Cir. 2002). The district court did not clearly err when it found
Arroyo was not a minor participant in the offense.
AFFIRMED.
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