United States v. Luis Abel Nevarez

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13930
Non-Argument Calendar
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D.C. Docket No. 5:07-cr-00055-RH-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ABEL NEVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(March 30, 2017)
Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Luis Abel Nevarez appeals his 192-month sentence, imposed at the middle
of the applicable guideline range, after he pleaded guilty to one count of
conspiracy to distribute and possess with intent to distribute more than five
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kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 846,
and one count of conspiracy to import more than five kilograms of cocaine, in
violation of 21 U.S.C. §§ 952(a), 960(b)(1)(B), 963. The district court found that
Nevarez failed to qualify for relief under the safety-valve provision in U.S.S.G. §
5C1.2 and § 2D1.1(b)(17) because Nevarez failed to meet two of the five safety-
valve criteria -- that the defendant did not possess a firearm in connection with the
offense and that the offense did not result in death to any person. On appeal,
Nevarez argues that the district court erred by not granting him the two-level
safety-value reduction in offense level because: (1) the district court misapplied
recent revisions to the relevant conduct provisions in the Guidelines and factually
erred in concluding that deaths occurred in connection with Nevarez’s conspiracy;
and (2) the district erred in finding that, although Nevarez himself did not possess
firearms in connection with the conspiracy, he aided and abetted the possession of
others involved in the conspiracy. After careful review, we affirm.
In reviewing safety-valve decisions, we review a district court’s factual
determinations for clear error and interpretations of the statutes and Sentencing
Guidelines de novo. United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir.
2006). A district court’s factual finding is not clearly erroneous if it is plausible in
light of the record. United States v. Siegelman, 786 F.3d 1322, 1333 (11th Cir.
2015), cert. denied, 136 S. Ct. 798 (2016). Further, where two permissible views
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of the evidence exist, the factfinder’s choice between them cannot be clearly
erroneous. United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006). The
defendant bears the burden to prove his eligibility for safety-valve relief. United
States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004). We may affirm on any
ground supported in the record. United States v. Simmons, 368 F.3d 1335, 1342
(11th Cir. 2004); see also Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity,
or variance that does not affect substantial rights must be disregarded.”).
Under U.S.S.G. § 5C1.2, a defendant who meets the criteria in subsections
(a)(1) through (a)(5) is eligible for sentencing without regard to the statutory
minimum and for a two-level offense level reduction under U.S.S.G. §
2D1.1(b)(17). Among those five criteria are that the “defendant did not . . .
possess a firearm or other dangerous weapon (or induce another participant to do
so) in connection with the offense,” U.S.S.G. § 5C1.2(a)(2), and that “the offense
did not result in death or serious bodily injury to any person,” id. § 5C1.2(a)(3).
“‘Offense,’ as used in [§ 5C.2(a)(2)–(4)] . . . mean[s] the offense of conviction and
all relevant conduct.” Id. § 5C1.2, comment. (n.3). “Consistent with § 1B1.3
(Relevant Conduct), the term ‘defendant,’ as used in [§ 5C1.2(a)(2)] limits the
accountability of the defendant to his own conduct and conduct that he aided or
abetted, counseled, commanded, induced, procured, or willfully caused.” Id. §
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5C1.2, comment. (n.4). 1 However, a co-conspirator’s firearm possession that is
reasonably foreseeable may not preclude safety-valve relief. See United States v.
Clavijo, 165 F.3d 1341, 1342–43 (11th Cir. 1999) (noting the term “defendant” as
used in subsection (2) limits the defendant’s accountability “to his own conduct
and conduct that he aided and abetted, counseled, commanded, induced, procured,
or willfully caused” (quotation omitted)).
In Rosemond v. United States, the Supreme Court held that a defendant’s
culpability for aiding and abetting his confederate’s firearm use in a drug
trafficking case requires (1) active participation in the drug trafficking, and (2)
advance knowledge that a confederate would carry a gun. 134 S. Ct. 1240, 1243–
45 (2014) (analyzing the interplay of 18 U.S.C. § 924(c), which prohibits carrying
or using a gun in connection with drug trafficking, with 18 U.S.C. § 2, which holds
accountable as a principal a person who “aids, abets, counsels, commands, induces,
or procures” a federal offense). The Court held that Rosemond’s participation in
the underlying drug deal satisfied aiding and abetting’s requirement of active
participation in the drug trafficking. Id. at 1247. Nonetheless, the Supreme Court
remanded the case because the district court had not instructed the jury to consider
1
Amendment 790 to the Guidelines amended U.S.S.G. § 1B1.3(a)(1)(B)’s definition of “relevant
conduct,” striking “all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” U.S.S.G. App. C, amend. 790. It added instead “all acts
and omissions of others that were (i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with
that criminal activity.” Id.; see also id. § 1B1.3(a)(1)(B) (2015).
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whether Rosemond had advance knowledge that a confederate would carry a gun.
Id. at 1243, 1249, 1252. The Court noted that a defendant with this knowledge
“align[s] himself with the illegal scheme in its entirety -- including its use of a
firearm.” Id. at 1249. We’ve held, in another case, that a co-conspirator’s pattern
of firearm possession during prior joint undertakings may support the conclusion
that the defendant knew his co-conspirator would possess a firearm. See United
States v. Thompson, 610 F.3d 1335, 1339 (11th Cir. 2010) (holding that a
reasonable jury could conclude that the defendant knew his confederate would
possess a firearm during a bank robbery when the defendant participated in a prior
bank robbery in which the same confederate was armed).
Here, the district court found that Nevarez failed to meet two of the five
safety-valve criteria -- that he did not possess a firearm in connection with the
offense and that the offense did not result in death to any person. On the record
before us, we cannot say that the district court’s firearm finding was implausible.
Siegelman, 786 F.3d at 1333. For starters, Nevarez conceded that he participated
in the drug trafficking conspiracy, satisfying the requisite act for aiding and
abetting. Rosemond, 134 S. Ct. at 1247. Moreover, the record contains enough
evidence to support a finding that Nevarez knew his co-conspirators would possess
a firearm during the drug trafficking conspiracy. Id. at 1243, 1249; Thompson,
610 F.3d at 1339. Juan Chávez -- Nevarez’s brother-in-law and codefendant in this
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case, and the leader of Nevarez’s drug trafficking organization -- used his
organization to traffic guns to Mexico and sold at least one gun to a member of
Panama City’s Gadson organization, which participated in the Chávez
organization’s drug trafficking enterprise. Nevarez, who was Chávez’s right-hand
man, knew that the Chávez organization trafficked guns to Mexico and that Chávez
sold a gun to the Gadson organization. Further, Chávez possessed guns during
Nevarez and Chávez’s jointly undertaken activity in Mexico. Nevarez also
participated in the Chávez organization’s gun trafficking activities by serving as
the contact for Sarjio Nevarez, who was Nevarez’s brother, when Sarjio returned to
the United States with proceeds from trafficking guns to Mexico.
Nevarez presented no rebutting evidence, but argues only that (1) the
government failed to present evidence detailing when Nevarez learned of his co-
conspirators’ firearms possession, and (2) Nevarez was in jail during most of
Sarjio’s gun trafficking activity. However, Navarez cannot simply allege that the
government failed to prove he had advance knowledge; rather, he must show that
he lacked advance knowledge, which he failed to do. Johnson, 375 F.3d at 1302.
Thus, the district court did not clearly err in finding that Nevarez aided and abetted
his co-conspirators’ firearms possession in connection with the conspiracy.
Because Nevarez’s aiding and abetting the possession of firearms alone is
sufficient to preclude safety-valve relief under U.S.S.G. § 5C1.2(a) and §
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2D1.1(b)(17), the court did not err by denying safety-valve relief to Nevarez.
Accordingly, we need not address whether the district court clearly erred in finding
the offense did not result in death, see Simmons, 368 F.3d at 1342; Fed. R. Crim.
P. 52(a), and we affirm Nevarez’s sentence.
AFFIRMED.
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