United States v. Noslen Hernandez Romero , 187 F. App'x 931 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15714 JUNE 29, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00005-CR-FTM-33-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOSLEN HERNANDEZ ROMERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 29, 2006)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Noslen Hernandez Romero appeals his sentence imposed after he pled guilty
to conspiracy to possess with intent to distribute more than 1,000 marijuana plants,
and possession with intent to distribute more than 1,000 marijuana plants, in
violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(vii). Romero appeals the
district court’s refusal to grant a minor-role reduction and challenges his sentence
as unreasonable. We affirm Romero’s sentence.
I. DISCUSSION
A. Minor-role reduction
“[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 Sentencing Guidelines provide for a
two-level decrease in a defendant’s offense level if the court finds the defendant
was a “minor participant” in the criminal activity. U.S.S.G § 3B1.2. In
determining whether a mitigating-role reduction is warranted, a district court
“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. “Only if the defendant can
establish that [he] played a relatively minor role in the conduct for which [he] has
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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.” Id. at 944. Furthermore, “that a defendant’s role may be less than
that of other participants engaged in the relevant conduct may not be dispositive of
role in the offense, since it is possible that none are minor . . . participants.” Id.The proponent of the reduction bears the burden of proving the mitigating role in
the offense by a preponderance of the evidence. Id. at 939.
The district court did not clearly err by refusing to grant Romero a minor-
role reduction because the district court held Romero accountable only for the
plants with which he worked and not the number of plants attributed to the
conspiracy. Romero was responsible for keeping approximately 6,000 marijuana
plants alive, which supports the district court’s finding that Romero played an
integral role in the success of the conspiracy. Moreover, the large amount of
marijuana involved in this offense suggests a minor-role reduction was
inappropriate. Finally, we have stated a case may involve a conspiracy in which
none of the actors is a minor participant. Accordingly, the district court did not
clearly err in refusing to grant Romero a minor-role reduction.
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B. Reasonableness
After the Supreme Court’s opinion in United States v. Booker, 125 S. Ct.
738 (2005), we review a defendant’s ultimate sentence for reasonableness. United
States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006). “Before deciding
whether a sentence is reasonable, we first determine whether the district court
correctly interpreted and applied the Guidelines to calculate the appropriate
advisory Guidelines range.” Id. Then we determine whether the ultimate sentence
imposed was reasonable in the context of the factors in 18 U.S.C. § 3553(a). Id.Factors the district court should take into account under 18 U.S.C. § 3553(a)
include: (1) the nature and circumstances of the offense; (2) the history and
characteristics of the defendant; (3) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment; (4) the need to protect the public; and (5) the advisory Guidelines
range. United States v. Scott, 426 F.3d 1324, 1328-29 (11th Cir. 2005) (citing 18
U.S.C. § 3553(a)). However, “nothing in Booker or elsewhere requires the district
court 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.” Id. at 1329.
The district court correctly calculated Romero’s advisory Guidelines range
of 70 to 87 months’ imprisonment. In looking at the § 3553(a) factors, the district
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court specifically acknowledged Romero’s youth and the date he arrived in the
United States, but the court found more important that Romero did not commit the
crimes because he was suffering from an addiction to drugs and the large amount
of marijuana involved in the portion of the conspiracy for which he was
accountable. 18 U.S.C. § 3553; Scott, 426 F.3d at 1328-29. The court found
Romero’s actions were integral to the success of the conspiracy and supported a
sentence at the high end of the range. We find his 87-month sentence reasonable.
AFFIRMED.
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