United States v. Marlon Andres Vazquez-Restrepo ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12134 NOVEMBER 29, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00339-CR-T-17-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLON ANDRES VAZQUEZ-RESTREPO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 29, 2007)
Before TJOFLAT, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Marlon Andres Vazquez-Restrepo appeals his concurrent 135-month
sentences imposed after he pled guilty to conspiracy to possess with intent to
distribute five kilograms or more of cocaine while on board a vessel subject to the
jurisdiction of the United States, a violation of 46 U.S.C. §§ 70506, 70508, and 21
U.S.C. § 960(b)(1)(B)(ii); and possession with intent to distribute five kilograms or
more of cocaine while board a vessel subject to the jurisdiction of the United
States, a violation of 46 U.S.C. §§ 70506, 70508, 21 U.S.C. § 960(b)(1)(B)(ii),
and 18 U.S.C. § 2. On appeal, Vazquez-Restrepo asserts that the district court
erred by denying a minor-role reduction, pursuant to U.S.S.G. § 3B1.2(b). More
specifically, Vazquez-Restrepo contends that his role in the conspiracy was minor
when compared to his relevant conduct and the role of the other participants in the
overall conspiracy because: (1) his only job was to count bales of cocaine; (2) he
was not to share in the proceeds from the drugs; (3) he did not own or prepare the
drugs; and (4) he did not plan the operation. After thorough review of the record
and careful consideration of the parties’ briefs, we affirm.
We review a district court’s factual findings regarding a defendant’s role in
the offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). “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.” De Varon, 175 F.3d at 945. The defendant, as
the proponent of the downward adjustment, bears the burden of proving the
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mitigating role in the offense by a preponderance of the evidence. Id. at 939. A
district court, however, “is not required to make any specific findings other than
the ultimate determination of the defendant’s role in the offense.” Id. at 940.
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 minor participant is a defendant “who is
less culpable than most other participants, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2, comment. (n.5). In determining whether a
minor-role reduction is warranted, a district court “should be informed by two
principles discerned from the Guidelines.” De Varon, 175 F.3d at 940. Under the
first prong, which may be dispositive in many cases, “the district court must
measure the defendant’s role against the relevant conduct for which [he] was held
accountable at sentencing.” Id. at 945. Relevant conduct is the “conduct attributed
to the defendant in calculating [his] base offense level.” Id. at 941. “[W]here the
relevant conduct attributed to a defendant is identical to [his] actual conduct, [he]
cannot prove that [he] is entitled to a minor role adjustment simply by pointing to
some broader criminal scheme in which [he] was a minor participant but for which
[he] was not held accountable.” Id.Under the second prong, “the district court may also measure the
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defendant’s role against the other participants, to the extent that they are
discernable, in that relevant conduct.” Id. at 945. A defendant, however, “is not
automatically entitled to a minor role adjustment merely because [he] was
somewhat less culpable than the other discernable participants. Rather, the district
court must determine that the defendant was less culpable than most other
participants in [the] relevant conduct.” Id. at 944 (emphasis in original).
Here, Vazquez-Restrepo did not satisfy his burden on the first De Varon
prong because the relevant conduct for which the district court held him
accountable -- possession of the 1,590 kilograms of cocaine found on the vessel --
was identical to his actual conduct in the conspiracy. Moreover, the sheer quantity
of drugs is evidence that a minor-role reduction was not warranted. See De Varon,
175 F.3d at 943 (noting that the “amount of drugs is a relevant factor and
recogniz[ing] that under some circumstances it may be dispositive”). In short, the
district court only held the defendant accountable for the drugs involved in the
portion of the conspiracy in which he personally participated, and not for the
broader conspiracy. Therefore, the first principle of De Varon precludes a minor
role reduction.1
1
Given Vazquez-Restrepo’s failure to carry his burden on the first prong, we need not reach
the second De Varon prong, but we nevertheless observe that this second principle would also defeat
the award of a minor-role reduction here. The only participants who may be considered are those
involved in the relevant conduct attributed to Vazquez-Restrepo, specifically, the other
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“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. at 945 (emphasis in original). Here, we cannot find clear
error in the district court’s conclusion that Vasquez-Restrepo played an integral
role in the charged offenses and, accordingly, was not entitled to a minor-role
reduction, pursuant to our decision in De Varon.
AFFIRMED.
crewmembers. See id. Vazquez-Restrepo’s conduct appears to have been equal to that of the other
crew members and the conduct of others who were involved in the overall scheme of transporting
and selling cocaine. In fact, based on the government’s evidence that Vazquez-Restrepo possessed
a gun, the record indicates that he may have had the more substantial role -- when compared to other
crew members without guns -- of guarding the cocaine. To the extent Vazquez-Restrepo highlights
that, unlike other members of the broader conspiracy, he did not have an equity interest in the drugs,
the conduct of others who were involved in the broader conspiracy -- the organizers or recruiters or
those with an equity interest in the cocaine -- is irrelevant to the assessment of a Vazquez-Restrepo’s
role, because he was not charged with a larger conspiracy to import or distribute drugs, and, in any
event, the other individuals are not identifiable from the evidence. See DeVaron, 175 F.3d at 944.
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