United States v. Sebastian Gil-Ramirez

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13742
Non-Argument Calendar
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D.C. Docket No. 0:16-cr-60043-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SEBASTIAN GIL-RAMIREZ,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(April 20, 2017)
Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Sebastian Gil-Ramirez appeals his 48-month sentence after pleading guilty
to one count of possessing cocaine with the intent to distribute in violation of
21 U.S.C. §§ 841(a)(1). He argues that he was improperly denied safety-valve
relief and a minor role reduction, and that his sentence is substantively
unreasonable. Upon review of the record and consideration of the parties’ briefs,
we affirm.
I
Mr. Gil-Ramirez was arrested in February of 2016 at Fort
Lauderdale-Hollywood International Airport when Customs and Border Patrol
officers discovered 2,414 grams of cocaine in the false bottom of his suitcase.
Mr. Gil-Ramirez, who is a Colombian citizen and permanent legal resident of the
United States, claimed that he received a call from someone named “Andres” in
Colombia who asked him if he was interested in traveling to that country to make
some money. Mr. Gil-Ramirez knew he was likely to be involved in illegal
activity, and brought along his girlfriend to minimize suspicion. “Andres” paid for
all of Mr. Gil-Ramirez’s transportation and hotel costs, and told him that he would
be carrying a suitcase containing cocaine back to the United States. After
examining the suitcase, Mr. Gil-Ramirez agreed to transport the drugs in exchange
for $5,000. He was arrested when the drugs were discovered upon his arrival at the
airport.
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A grand jury indicted Mr. Gil-Ramirez on charges of importing cocaine into
the United States in violation of 21 U.S.C.§§ 952(a) and 960(b)(3) (Count One),
and possessing cocaine with the intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) (Count Two). Pursuant to a plea agreement, he pled
guilty to Count Two, and Count One was dismissed. Mr. Gil-Ramirez agreed to
provide the government with a written statement truthfully setting forth all
information and evidence he had concerning the offense.
The PSI recommended a base-offense level of 26 under U.S.S.G. § 2D1.1, as
well as a three-level decrease under § 3E1.1(a) and (b) for acceptance of
responsibility. The PSI recommended a total offense level of 23 and a criminal
history category of I, resulting in an advisory guideline range of 46 to 57 months’
imprisonment.
In his objections to the PSI, Mr. Gil-Ramirez requested a two-level reduction
under the “safety-valve” provision of U.S.S.G. § 5C1.2, and a minor-role
reduction. At the sentencing hearing, Mr. Gil-Ramirez also requested that the
district court grant a downward variance from the advisory guideline range. The
district court ultimately denied his request for the reductions and sentenced him to
48 months of imprisonment, to be followed by three years of supervised release.
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II
“When reviewing the denial of safety-valve relief, we review for clear error
a district court’s factual determinations.” United States v. Johnson, 375 F.3d 1300,
1301 (11th Cir. 2004). The safety-valve provision implements 18 U.S.C. § 3553(f)
and requires a district court to sentence a defendant “without regard to any
statutory minimum sentence” if the defendant meets five criteria. See U.S.S.G.
§ 5C1.2. A defendant’s base offense level may also be reduced by two levels if all
five of the criteria are met. See U.S.S.G. § 2D1.1(b)(17). The burden is on the
defendant to show that he has met each of the safety-valve factors. See
Johnson, 375 F.3d at 1302. The fifth factor—the only one at issue here—requires
that:
(5) not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence
the defendant has concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or useful other information to
provide or that the Government is already aware of the information
shall not preclude a determination by the court that the defendant has
complied with this requirement.
U.S.S.G. § 5C1.2(a)(5).
“This final factor is a ‘tell-all’ provision: to meet its requirements, the
defendant has an affirmative responsibility to truthfully disclose to the government
all information and evidence that he has about the offense and all relevant
conduct.” Johnson, 375 F.3d at 1302 (internal quotation marks and citation
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omitted) (emphasis in original). The defendant has a burden to come forward and
supply the government with all the information that he possesses about his
involvement in the crime, including information relating to the involvement of
others and the chain of the narcotics distribution. See id.
Mr. Gil-Ramirez argues that the district court did not fulfill its duty as
factfinder and instead merely relied on the government’s assessment of his factual
proffer. The record shows, however, that the district court considered at length
both the government’s and Mr. Gil-Ramirez’s arguments at the sentencing hearing.
See D.E. 33 at 5–12. After independent review of Mr. Gil-Ramirez’s written
statement and the record, the court found—by a preponderance of the evidence—
that Mr. Gil-Ramirez had not truthfully provided to the government all the
information that he possessed concerning the offense. See id. at 12. Nothing in the
record suggests that the district court clearly erred in making this determination
and, as a result, we affirm its denial of safety-valve relief.
III
We review for clear error the district court’s denial of a minor role
reduction. See United States v. Moran, 778 F.3d 942, 980 (11th Cir. 2015). A
defendant may receive a two-level decrease under the Sentencing Guidelines if he
was “a minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b). A minor
participant “is less culpable than most other participants, but [his] role could not be
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described as minimal.” U.S.S.G .§ 3B1.2, comment. (n.5). A defendant bears the
burden of proving his minor role by a preponderance of the evidence. See Moran,
778 F.3d at 980.
To determine whether a minor role adjustment applies, the court should
consider (1) “the defendant’s role in the relevant conduct for which he has been
held accountable at sentencing,” and (2) “his role as compared to that of other
participants in his relevant conduct.” Id. “[A] defendant’s status as a drug courier
does not alter the principle that the district court must assess the defendant’s role in
light of the relevant conduct attributed to [him]” and is not itself dispositive of
whether a defendant is entitled to receive a minor role adjustment. United States v.
Rodriguez De Varon, 175 F.3d 930, 942 (11th Cir. 1999) (en banc). “[W]hen a
drug courier’s relevant conduct is limited to [his] own act of importation, a district
court may legitimately conclude that the courier played an important or essential
role in the importation of those drugs.” Id. at 942–43. “Only if the defendant can
establish that [he] played a relatively minor role in the conduct for which [he] has
already been held accountable—not a minor role in any larger criminal
conspiracy—should the district court grant a downward adjustment for minor role
in the offense.” Id. at 944.
Mr. Gil-Ramirez argues that he was merely a courier in a broader
importation scheme of which he had little knowledge, and is therefore entitled to a
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downward sentencing adjustment. The relevant criminal conduct here, however, is
possession with intent to distribute cocaine. Mr. Gil-Ramirez admitted that he
knew he would be involved in illegal activity from the start, that he brought his
girlfriend along on the trip as a cover-up, and that he inspected the suitcase and
agreed to carry it into the United States. The district court did not clearly err in
finding that Mr. Gil-Ramirez played a significant role in the commission of the
crime for which he is held accountable, and we therefore affirm its denial of his
request for a two-level minor role reduction.
IV
We review the substantive reasonableness of a sentence for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 41 (2007). Mr. Gil-Ramirez, as
the party challenging the sentence, has the burden of demonstrating that it is
unreasonable in light of the record and the facts enumerated in 18 U.S.C. § 355(a).
See United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). “A district court
abuses its discretion when it (1) fails to afford consideration to relevant factors that
were due significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in considering the proper
factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
Under our deferential standard of review, “we are to vacate the sentence if, but
only if, we are left with the definite and firm conviction that the district court
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committed a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.” Id. (internal quotation marks and citation omitted).
We examine whether a sentence is substantively reasonable in light of the
totality of the circumstances. See Gall, 552 U.S. at 51. The district court must
impose a sentence “sufficient, but not greater than necessary, to comply with the
purposes” listed in § 3553(a)(2), including the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, and
deter criminal conduct. See 18 U.S.C. § 3553(a). The fact that a sentence is within
the advisory guideline range and well below the statutory maximum are both
factors indicative of reasonableness. See United States v. Cubero, 754 F.3d 888,
898 (11th Cir. 2014).
Mr. Gil-Ramirez argues that his 48-month sentence is substantively
unreasonable and that the court did not properly consider his family circumstances,
gambling addiction, and impending deportation when deciding the duration of his
term of imprisonment. He argues that, had the district court adequately considered
these factors, it would have granted his request for a 24-month sentence.
The record shows that the district court did in fact consider these particular
aspects of Mr. Gil-Ramirez’s life at sentencing. See D.E. 33 at 19–26. After a
review of the record, the PSI, and the § 3553(a) factors, the district court
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determined that a 48-month sentence was appropriate. The district court did not
abuse its discretion because there is no indication that it failed to consider the
relevant factors, gave weight to an improper or irrelevant factor, or committed a
clear error of judgment. Moreover, the sentence falls at the low end of the advisory
guideline range, which indicates reasonableness. See Cubero, 754 F.3d at 898.
Accordingly, Mr. Gil-Ramirez has not demonstrated that his 48-month sentence
was unreasonable in light of the record and the § 3553(a) factors.
V
The district court did not err in denying the request for safety valve relief
because Mr. Gil-Ramirez failed to prove that he truthfully provided the
government all the information he had concerning the offense. The district court
also did not err when it denied Mr. Gil-Ramirez’s request for a minor role
reduction. Finally, the district court’s imposition of a 48-month sentence was not
substantively unreasonable and did not constitute an abuse of discretion.
Mr. Gil-Ramirez’s sentence is therefore affirmed.
AFFIRMED.
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