United States v. Perez

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2588
UNITED STATES OF AMERICA,
Appellee,
v.
MARINO PÉREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.
Ramón M. González Santiago on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Germán A.
Rieckehoff, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-
Vélez, United States Attorney, on brief for appellee.
December 15, 2006
Per Curiam. Marino Pérez challenges his 110-month,
below-guidelines sentence primarily on the ground that the district
court erred in rejecting his request for a minor-role adjustment
under U.S.S.G. § 3B1.2.1 He also argues that the district court
departed from the sentencing protocol that we subsequently endorsed
in United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.
2006) (en banc), and its progeny, by inadequately explaining the
reasons for its chosen sentence. After carefully considering the
parties' briefs and the underlying record, we reject those
arguments and affirm the sentence for the reasons discussed below.
"Role-in-the offense determinations are notoriously fact-
sensitive . . . ." United States v. Ortiz-Santiago, 211 F.3d 146,
148 (1st Cir. 2000). Accordingly, "appellate review is
deferential: the district court's resolution of a dispute over a
defendant's role is reviewed only for clear error." Id. at 148-49.
That standard of review of factual determinations in the sentencing
context remains unchanged after United States v. Booker, 543 U.S.
220 (2005). United States v. Robinson, 433 F.3d 31, 38 (1st Cir.
2005). "'Thus, absent a mistake of law, battles over a defendant's
1
If the court had found Pérez to be a "minor participant"
within the meaning of U.S.S.G. § 3B1.2, he would have been entitled
to a two-level reduction in his base offense level under U.S.S.G.
§ 3B1.2(b) and an additional four-level reduction under
§ 2D1.1(b)(3)(B)(iii) (Nov. 1, 2004 ed.). See also U.S.S.G.
§ 3B1.2 comment. (n.6). Those reductions--combined with other
reductions granted by the court and his Criminal History Category
of I--would have resulted in a guidelines range of 70 to 87 months.
Pérez asked to be sentenced at the bottom of that range.
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status . . . will almost always be won or lost in the district
court.'" Ortiz-Santiago, 211 F.3d at 149 (quoting United States v.
Graciani, 61 F.3d 70, 71 (1st Cir. 1995)). This case is no
exception.
"A defendant who seeks a downward adjustment stemming
from his supposedly peripheral role in the offense bears the burden
of proof on that issue. To qualify for a minor role reduction
. . . , the defendant must satisfy a two-pronged test. First, he
must demonstrate that he is less culpable than most of those
involved in the offenses of conviction. Second, he must establish
that he is less culpable than most of those who have perpetrated
similar crimes." United States v. Mateo-Espejo, 426 F.3d 508, 512
(1st Cir. 2005) (citations omitted), cert. denied, 126 S. Ct. 414(2006). Here, the district court did not clearly err in concluding
that Pérez had failed to satisfy that two-pronged burden.
In declining to apply a minor-role adjustment, the
district court relied on undisputed evidence that, rather than
simply serve as a deckhand and intended offloader of the drugs once
they were onboard, Pérez had traveled 12 miles to get the drugs,
had loaded them onto a speedboat headed for a known drug-
trafficking location, was one of only two people onboard the
speedboat, and participated in throwing some of the drugs overboard
once the vessel was approached by law enforcement authorities. The
court further noted that the amount of drugs--over 1,000 kilograms
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of cocaine and over 6 kilograms of heroine--was "huge" as was the
amount of money ($80,000) that Pérez was promised for his
participation. In reaching the conclusion that these circumstances
made him more than a minor participant, the court properly rejected
Pérez's speculative argument that the other person onboard was more
culpable simply because he was the captain of the ship. In the
absence of any evidence of their respective roles, the fact that
one of the two individuals served as a captain "does not indicate
that [the] other[] on board had a less significant function
relative to the criminal activities." United States, v. Coneo-
Guerrero, 148 F.3d 44, 50-51 (1st Cir. 1998).
Moreover, even if Pérez were the less culpable of the
two, that would not automatically entitle him to a minor-role
adjustment. United States v. Murphy, 193 F.3d 1, 9 (1st Cir.
1999). To satisfy the second prong of the minor-role standard, a
defendant must be less culpable, not only than his co-participants,
but also than the ordinary average participant in the offense of
conviction. United States v. Sanchez, 354 F.3d 70, 75 (1st Cir.
2004). Where, as here, the offense of conviction is simply
possession with intent to distribute drugs, not a broad-ranging
drug-trafficking conspiracy, "it matters little . . . whether
defendant[] substantially participated in an alleged overall drug
conspiracy. The fact that [he] may or may not have been a smaller
part of a larger conspiracy does not diminish [his] role in the
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cocaine possession offense charged here." United States v.
Rosario-Peralta, 199 F.3d 552, 571-72 (1st Cir. 1999); see also
United States v. Wright, 873 F.2d 437, 442-43 (1st Cir. 1989).
Thus, based on the totality of circumstances evidenced in
the record, we cannot say that the district court clearly erred in
rejecting Pérez's bid for a minor-role reduction in his offense
level. Absent such an adjustment, the district court correctly
calculated Pérez's advisory guidelines sentencing range as 135 to
168 months. Nevertheless, applying the "rule of leniency," the
court sentenced him to only 110 months' imprisonment.2
Despite receiving a below-guidelines sentence, Pérez
faults the court for failing to explain the reasons for the
sentence in terms of the statutory factors. From the sentencing
transcript, it is obvious that the sentence was based primarily on
the guidelines calculations, which is not impermissible, since the
guidelines "continue . . . to be an important consideration in
sentencing." Jiménez-Beltre, 440 F.3d at 518. Both at the change
of plea hearing and at sentencing, the court expressly recognized
that the guidelines are now advisory rather than mandatory, and,
before imposing sentence, the court expressly stated that it had
2
That exercise of leniency was based on the court's
(questionable) belief that because Pérez satisfied the requirements
for the "safety valve," the applicable statute, 18 U.S.C.
§ 3553(f), required that he be sentenced below the applicable
statutory minimum of 120-months. Understandably, Pérez does not
complain about that exercise of leniency, and neither does the
government. Hence, we do not address it.
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considered not only the guidelines but also the sentencing factors
set forth in 18 U.S.C. § 3553. Although the court did not discuss
those factors individually, such discussion is required only as to
those factors raised for the court's consideration at sentencing.
United States v. Alli, 444 F.3d 34, 41 (1st Cir. 2006). At
sentencing, defense counsel alluded briefly to some of Pérez's
personal circumstances, including his lack of a criminal record,
his status as an illegal alien, his parents' poverty, and his
resulting need to work rather than complete his schooling, but he
made no arguments as to why those circumstances warranted a lighter
sentence in light of any of the statutory factors.3
Moreover, to the extent that the district court
implicitly rejected such relatively ordinary circumstances as
warranting a sentence even lower than the sentence imposed-- which
was already 15 months below the bottom of the guidelines range and
10 months below the statutory minimum--we see nothing unreasonable
about that implicit rationale or the resulting sentence.
Accordingly, the judgment is affirmed. See Loc. R. 27.0(c).
3
On appeal, Pérez argues, for the first time, that his status
as a deportable alien warranted a lighter sentence because, as
such, he is ineligible for any time-reduction programs while
incarcerated. This unpreserved claim falls far short of plain
error. See United States v. Beriguete Meran, 463 F.3d 47, 49 (1st
Cir. 2006) (per curiam) (finding rejection of similar argument to
be not unreasonable).
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