United States v. Alvaro Santos-Plata , 154 F. App'x 767 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 15, 2005
No. 05-11375 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20805-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVARO SANTOS-PLATA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 15, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Alvaro Santos-Plata appeals his 72-month concurrent sentences
for conspiracy to import and importation of heroin, in violation of 21
U.S.C. §§ 952(a) and 963; and conspiracy to possess and possession with intent to
distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal,
Santos-Plata argues that his sentence was unreasonable in light of the district
court’s erroneous denial of a minor-role reduction and the Supreme Court’s recent
decision in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005).
In Booker, the Supreme Court held that the mandatory nature of the Federal
Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s
guarantee to the right to a jury trial. 543 U.S. at ___,125 S. Ct. at 749-51. The
Court decided that the appropriate remedy was to excise two specific statutory
provisions which made the Guidelines mandatory, thereby rendering the
Guidelines advisory only. Id. at ___, 125 S. Ct. at 764. The Court explained that,
“[w]ithout the ‘mandatory’ provision, the Act nonetheless requires judges to take
account of the Guidelines together with other sentencing goals” contained in 18
U.S.C. § 3553(a). Id.Section 3553(a) provides that district courts imposing a sentence must first
consider, inter alia, the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for the sentence to reflect the seriousness
of the offense, promote respect for the law, and provide just punishment for the
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offense, and the kinds of sentences and sentencing range established by the
Guidelines. See 18 U.S.C. § 3553(a).
We are required to “review for unreasonableness” a sentence imposed post-
Booker. Booker, 543 U.S. at ___, 125 S. Ct. at 765 (quotation and alteration
omitted); see also United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.
2005) (noting that “Booker established a ‘reasonableness’ standard for the
sentence finally imposed on a defendant”). We have noted that, in conducting a
review for reasonableness, we “would not expect the district court in every case to
conduct an accounting of every § 3553(a) factor . . . and expound upon how each
factor played a role in its sentencing decision.” United States v. Robles, 408 F.3d
1324, 1328 (11th Cir. 2005). We have stated, however, that the district court is
obligated “to calculate correctly the sentencing range prescribed by the
Guidelines.” Crawford, 407 F.3d at 1178.
In United States v. Winingear, we recently conducted a review of an
appellant’s sentence for reasonableness and explained that the sentence must be
reasonable in the context of the factors listed in 18 U.S.C. § 3553(a). No. 05-
11198, manuscript op. at 9-10 (11th Cir. Aug. 30, 2005). In addition to discussing
the nature and circumstances of the offense and the appellant’s criminal history,
we specifically noted that the sentence imposed was “one-tenth the length of the
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twenty-year statutory maximum sentence,” and held that the sentence was
reasonable based on the factors listed in 18 U.S.C. § 3553(a). Id. at 10-11.
We must determine whether the district court calculated the Guidelines
sentence correctly in order to determine whether Santos-Plata’s sentence was
reasonable. See Crawford, 407 F.3d at 1178. These two steps will be discussed in
turn.
In this case, Santos-Plata challenges the computation of the Guidelines
range in light of the district court’s refusal to apply a minor-role reduction under
U.S.S.G. § 3B1.2(b). “Post-Booker, we continue to review the district court’s
application of the Guidelines just as we did pre-Booker.” United States v. Ellis,
491 F.3d 1189, (11th Cir. 2005). We have “long and repeatedly held that 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 downward adjustment . . .
always bears the burden of proving the mitigating role in the offense by a
preponderance of the evidence.” Id. at 939. “In making the ultimate determination
of the defendant’s role in the offense, the sentencing judge has no duty to make
any specific subsidiary factual findings.” Id.4
The Sentencing Guidelines permit a court to decrease a defendant’s offense
level by two points if it finds that the defendant was a “minor participant” in the
criminal activity. U.S.S.G § 3B1.2(b). A defendant is a minor participant “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.
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.
A. Whether the District Court Correctly Calculated Santos-Plata’s
Guideline Range
As for the first prong of the De Varon test, the district court properly found
that Santos-Plata played a greater role than merely transporting heroin into the
United States. Turning to the second prong of the De Varon test, the evidence in
the record does not show that Santos-Plata was less culpable than most other
participants in the offense. Accordingly, the district court correctly calculated
Santos-Plata’s Guideline range and did not err by refusing to apply a two-level
minor-role reduction pursuant to U.S.S.G. § 3B1.2(b).
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B. Whether Santos-Plata’s Sentence was Reasonable Under Booker
In this case, we hold that Santos-Plata’s sentence as reasonable for several
reasons. First, the district court’s imposition of a sentence was procedurally
proper in that it (1) calculated the Guidelines range correctly, as discussed above;
(2) treated that Guidelines range as advisory only; and (3) apparently considered
the factors in 18 U.S.C. § 3553(a). See Crawford, 407 F.3d at 1178. Second,
Santos-Plata received a relatively minimal 72-month sentence given the fact that
he was subject to a maximum sentence of life imprisonment. See 21 U.S.C.
§§ 841(b)(1)(A)(i) and 960(b)(1)(A); Winingear, No. 05-11198, manuscript op. at
10-11. Third, the district court correctly determined that U.S.S.G. § 3B1.2 did not
apply, as discussed above, so the court acted reasonably in not imposing a
sentence within a range that would have controlled if § 3B1.2 did apply. Fourth,
the court sentenced Santos-Plata 15 months below the applicable Guideline range.
For the foregoing reasons, we affirm Santos-Plata’s sentences.
AFFIRMED.
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