United States v. John Jario Escobar

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 30, 2005
No. 05-11090 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00461-CR-T-30-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN JARIO ESCOBAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 30, 2005)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, John Jario Escobar appeals his 70-month sentence for
possession with intent to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). After review, we affirm.
As part of a sting operation, Escobar purchased ten kilograms of cocaine
from an undercover agent. After Escobar was arrested, he admitted that he was
going to be paid $1,500 per kilogram when he delivered the cocaine to a man
known as Rogelio, and that if he had been successful, he would have made
additional purchases of cocaine. Subsequently, Escobar pled guilty to possession
with intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
On appeal, Escobar does not contest his guilt.1 Rather, Escobar contends
that the district court committed clear error in refusing to grant him a minor-role
adjustment of two levels pursuant to U.S.S.G. § 3B1.2(b).
“This Court has 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. Rodriguez De Varon, 175 F.3d
930, 937 (11th Cir. 1999) (en banc). In determining the defendant’s role, the
1
Escobar was sentenced on February 18, 2005, after United States v. Booker, 125 S. Ct. 738(2005). Escobar does not raise any Booker issues or assert that his sentence was unreasonable.
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decision falls within the sound discretion of the district court: “a trial court’s
choice between two permissible views of the evidence is the very essence of the
clear error standard of review.” Id. at 945 (quotation marks and citation omitted).
In determining whether a minor-role adjustment 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.” Id. at 940. In looking to relevant conduct, “the district
court must assess whether the defendant is a minor or minimal participant in
relation to the relevant conduct attributed to the defendant in calculating [his] base
offense level.” Id. at 941.
Although Escobar was purchasing drugs for another individual, he was held
accountable only for the amount of drugs that he personally purchased from the
undercover agent. When “relevant conduct is limited to [a defendant’s] own
act[s] . . . , a district court may legitimately conclude that the [defendant] played an
important or essential role in the [purchase] of those drugs.” Id. at 942-43.
Additionally, ten kilograms of cocaine is a substantial amount of cocaine and “the
amount of drugs [possessed] is a material consideration in assessing a defendant’s
role in [his] relevant conduct.” Id. at 943.
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While Escobar may have played a minor role in a larger conspiracy to
purchase cocaine, he was held accountable only for the actual amount of cocaine
he purchased from the undercover agent. Therefore, the fact that Escobar may
have played a minor role in the larger conspiracy does not support a minor-role
adjustment. Id. at 944 (When a defendant is held accountable for his own acts,
“[t]he conduct of participants in any larger criminal conspiracy is irrelevant.”).
Accordingly, we conclude that the district court did not clearly err in denying
Escobar a minor-role adjustment.
For all the above reasons, we affirm Escobar’s 70-month sentence.
AFFIRMED.
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