United States v. Prudencia Portocabrero , 184 F. App'x 885 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 16, 2006
No. 05-17075 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00053-CR-T-30TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRUDENCIA PORTOCABRERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 16, 2006)
Before DUBINA, CARNES AND HULL, Circuit Judges.
PER CURIAM:
Prudencia Portocabrero appeals his 151-month sentence for possession with
the intent to distribute 5 kilograms or more of cocaine while on board a vessel
subject to United States jurisdiction, in violation of 46 U.S.C. App. § 1903(a), (g),
18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to possess with the
intent to distribute 5 kilograms or more of cocaine while on board a vessel subject
to United States jurisdiction, in violation of 46 U.S.C. App. § 1903(a), (g), (j) and
21 U.S.C. § 960(b)(1)(B)(ii). We affirm.
I.
Portocabrero contends that the district court clearly erred in denying him a
minor participant role reduction. He argues that he is entitled to that reduction for
the following reasons: he was just a mariner and was not the captain of the vessel;
he did not own the drugs; and he was not involved in planning the route or the
distribution of the drugs. He also contends that the district court clearly erred
when it considered the government’s statements at sentencing that he trained and
recruited crew members. He argues that those statements were unsubstantiated and
did not satisfy the preponderance of the evidence standard.
“[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 proponent of the reduction bears the
burden of proving the minor role in the offense by a preponderance of the
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evidence. Id. at 939. The determination of a defendant’s role in the offense “falls
within the sound discretion of the trial court.” Id. at 945. “So long as the basis of
the trial court’s decision is supported by the record and does not involve a
misapplication of a rule of law, we believe that it will be rare for an appellate court
to conclude that the sentencing court’s determination is clearly erroneous.” Id.The district court need not make “any specific subsidiary factual findings” in
determining the defendant’s role. Id. at 939. “So long as the district court’s
decision is supported by the record and the court clearly resolves any disputed
factual issues, a simple statement of the district court’s conclusion is sufficient.”
Id.The guidelines provide for a two-level reduction if the defendant was a
minor participant. U.S.S.G. § 3B1.2(b). A defendant is a minor participant if he is
less culpable than most other participants, but his role was not minimal. U.S.S.G.
§ 3B1.2 cmt. n.5. In determining whether a 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 she has
been held accountable at sentencing, and, second, her role as compared to that of
other participants in her relevant conduct.” De Varon, 175 F.3d at 940. Under the
first prong, the district court “must assess whether the defendant is a minor or
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minimal participant in relation to the relevant conduct attributed to the defendant in
calculating her base offense level.” Id. at 941. Under the second prong, the court
measures the defendant’s culpability in comparison to that of other participants in
the relevant conduct. Id. at 944.
The district court did not make any specific factfindings when it denied
Portocabrero a minor participant role reduction, and as we have explained, it was
not required to do so. De Varon, 175 F.3d at 939. The record demonstrates that
the court did not clearly err in its decision to deny Portocabrero that reduction.
During his plea proceedings, Portocabrero admitted he knew that “this was going
to be a drug trip.” Plea Transcript at 15. The record also shows that Portocabrero
had participated in other drug smuggling trips and was one of the more
experienced crewmembers on board the vessel. The large amount of cocaine
involved (1,170 kilograms) is also a factor that weighs against a finding that
Portocabrero was entitled to a minor role reduction. See De Varon, 175 F.3d at942–43.
At sentencing, the government asserted that Portocabrero participated in
recruiting and training other crewmembers, and he objected to that statement,
arguing that there was no evidence to support it. The district court, however, did
not indicate that it relied on the government’s statements about training and
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recruiting in denying Portocabrero a minor role reduction. Because undisputed
facts in the record support the decision to deny that reduction, the court’s simple
statement of its conclusion is sufficient. See De Varon, 175 F.3d at 939. The
district court did not clearly err in finding that Portocabrero failed to meet his
burden of proving that he was less culpable than most other participants. See
U.S.S.G. § 3B1.2 cmt. n.5.
II.
Portocabrero contends that the district court should have awarded him a one-
level reduction under U.S.S.G. § 3E1.1(b) for providing timely notice of his
intention to plead guilty. He explains that any delay in making his plea occurred
because he was not in good mental condition while in custody as a result of
drinking too much coffee and not having any communication with his family. He
argues that despite the delay, his plea still saved government resources because the
government did not have to pay to bring witnesses from California for a trial.
We review the findings by the district court regarding a reduction for acceptance of
responsibility for clear error. United States v. Calhoon, 97 F.3d 518, 531 (11th
Cir. 1996). A defendant bears the burden of establishing that he is entitled to a
reduction for acceptance of responsibility. Id.The guidelines provide for two separate reductions for acceptance of
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responsibility:
(a) If the defendant clearly demonstrates acceptance of responsibility
for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of subsection (a) is
level 16 or greater, and upon motion of the government stating that
the defendant has assisted authorities in the investigation or
prosecution of his own misconduct by timely notifying authorities of
his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the government
and the court to allocate their resources efficiently, decrease the
offense level by 1 additional level.
U.S.S.G. § 3E1.1 (emphasis added). “Because the Government is in the best
position to determine whether the defendant has assisted authorities in a manner
that avoids preparing for trial, an adjustment under subsection (b) may only be
granted upon a formal motion by the Government at the time of sentencing.” Id.
§ 3E1.1 cmt. n.6 (emphasis added).
In the present case, the government explained at sentencing that it did not
file a motion for a reduction under U.S.S.G. § 3E1.1(b) because Portocabrero was
the last of the codefendants to plead guilty. Portocabrero did so only after a trial
date had been set and after he had moved to continue the trial for a competency
evaluation on the eve of trial. The government explained that his guilty plea did
not save expenses because it still had to prepare for trial. Regardless of
Portocabrero’s explanation about why he waited to plead guilty, the guidelines
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clearly state that a district court cannot grant a reduction under U.S.S.G. § 3E1.1(b)
unless the government files a motion requesting it. Because the government did
not file a motion here, the district court did not clearly err in refusing to grant the
reduction.
III.
Portocabrero contends that his sentence is unreasonable under United States
v. Booker, 543 U.S. 220, 264, 125 S. Ct. 738, 767 (2005), because the district
court did not consider his impoverished and abusive childhood and disregarded the
fact that he now works to provide for his siblings, his mother, and his children. He
argues that he was less culpable than his codefendants who all received lesser
sentences than he did. He also argues that his sentence does not provide just
punishment for the offense and notes that he was not given adequate medical
attention while in jail.
We review a sentence for reasonableness in light of the § 3553(a) factors.
Booker, 543 U.S. at 264, 125 S. Ct. at 767; United States v. Winingear, 422 F.3d
1241, 1245 (11th Cir. 2005). Among the factors that a district court should
consider at sentencing are the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for adequate deterrence and
protection of the public, the pertinent Sentencing Commission policy statements,
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and the need to avoid unwarranted sentencing disparities. See 18 U.S.C.
§ 3553(a)(1)-(7). A district court is not required to state on the record that it has
explicitly considered each of the § 3553(a) factors or to discuss each of the
§ 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
Although we have refused to hold that a sentence within the guidelines range
is per se reasonable, we have concluded that “the use of the Guidelines remains
central to the sentencing process.” United States v. Talley, 431 F.3d 784, 787 (11th
Cir. 2005). We have also stated that “ordinarily we would expect a sentence within
the Guidelines range to be reasonable.” Id. at 788. As we have explained,
however, that expectation “still has to be measured against the record, and the
party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both that record and the factors in section
3553(a).” Id. “Review for reasonableness is deferential.” Id.Portocabrero’s 151-month sentence is reasonable in light of the record and
the § 3553(a) factors. His sentence was at the bottom of the guidelines range and
well below the statutory maximum sentence of life imprisonment. The court stated
that it considered the PSI, the § 3553(a) factors, and the statements made by
Portocabrero at sentencing. The 151-month sentence shows that the court
considered the significant amount of drugs involved and the need to impose a
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punishment that would provide adequate deterrence. The court’s imposition of a
sentence at the bottom of the guidelines, however, shows that it also considered
Portocabrero’s expression of remorse.
Portocabrero argues that the court should avoid unwarranted sentencing
disparities and asserts that more culpable codefendants received lesser sentences,
but the differences in the sentences may reflect the fact that Portocabrero did not
receive the one-level reduction for timely notification of a guilty plea. Therefore,
any sentencing disparities cannot be considered unwarranted. Furthermore, in
designing the guidelines “the Sentencing Commission fully anticipated sentencing
disparity between defendants involved in the same offense.” United States v.
Chotas, 968 F.2d 1193, 1197 (11th Cir. 1992); see also United States v. Hendrieth,
922 F.2d 748, 752 (11th Cir. 1991) (stating that “this court has rejected as
‘frivolous’ challenges to sentencing because a co-defendant received a less severe
penalty”).
Finally, Portocabrero’s assertions about his lack of medical treatment in jail
when his blood pressure dropped do not have any bearing on the justness or the
reasonableness of his sentence. After considering the briefs and the record in light
of our deferential standard of review, Talley, 431 F.3d at 788, we conclude that
Portocabrero’s 151-month sentence was reasonable.
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AFFIRMED.
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