United States v. Charles Varnedoe, aka Rider

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12638 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 2, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:08-cr-00407-TJC-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES VARNEDOE,
a.k.a. Rider,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 2, 2011)
Before EDMONDSON, HULL and PRYOR, Circuit Judges.
PER CURIAM:
After a jury trial, Charles Varnedoe appeals his 188-month sentence for
conspiracy to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. On appeal, Varnedoe argues that the
district court clearly erred by denying him a minor role reduction, pursuant to
U.S.S.G. § 3B1.2. After review, we affirm.1
A defendant receives a two-level reduction in his offense level if he was a
minor participant in the 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
described as minimal. U.S.S.G. §3B1.2 cmt. n.5. The defendant must prove his
minor role in the offense by a preponderance of the evidence. United States v. De
Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc).
Whether to apply a minor role reduction “is heavily dependent upon the
facts of the particular case.” U.S.S.G. § 3B1.2 cmt. n.3(C). “Two principles guide
a district court’s consideration: (1) the court must compare the defendant’s role in
the offense with the relevant conduct attributed to him in calculating his base
offense level; and (2) the court may compare the defendant’s conduct to that of
other participants involved in the offense.” United States v. Alvarez-Coria, 447
F.3d 1340, 1343 (11th Cir. 2006). When the relevant conduct attributed to the
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A district court’s determination of a defendant’s role in the offense is a finding of fact
that we review for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en
banc).
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defendant is the same as his actual conduct, “he cannot prove that he is entitled to
a minor-role adjustment simply by pointing to some broader scheme for which he
was not held accountable.” Id.; see also De Varon, 175 F.3d at 942-43(concluding that “when 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”).
As to the second prong, the district court is permitted to “measure the
defendant’s conduct against that of other participants” but only “where the record
evidence is sufficient.” De Varon, F.3d at 934. Furthermore, “[t]he fact that a
defendant’s role may be less than that of other participants engaged in the relevant
conduct may not be dispositive of role in the offense, since it is possible that none
are minor or minimal participants.” Id. at 944.
On the record before us, the district court’s refusal to give Varnedoe a two-
level minor-role reduction was not clear error. In calculating Varnedoe’s offense
level, the district court held Varnedoe accountable for between 50 and 150
kilograms of cocaine. See U.S.S.G. § 2D1.1(c)(2). Despite Varnedoe’s
contentions, he was not held accountable for the conduct of his co-conspirators.
According to paragraphs 8 and 9 in the Presentence Investigation Report (“PSI”):
(1) in early 2007, Varnedoe made at least three trips to a cocaine supplier in Texas
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to get approximately 20 kilograms of cocaine, which he then hid in secret
compartments of his van for the return to Jacksonville; and (2) in May 2007, law
enforcement stopped Varnedoe in his van and found 10 kilograms of cocaine.
Thus, at a minimum, Varnedoe personally transported 70 kilograms of cocaine.2
Furthermore, the record does not support Varnedoe’s claim that he was
merely a drug courier for Christopher Keith Robinson. Varnedoe introduced
Robinson to the Texas cocaine supplier and owned the van equipped with hidden
compartments that he used to transport multiple large shipments of cocaine from
Texas to Florida. On several occasions, Robinson and other conspirators visited
Varnedoe’s residence to drop off or pick up either cocaine or money. When
Varnedoe’s van was stopped in May 2007, in addition to 10 kilograms of cocaine,
Varnedoe was transporting $266,969 in cash, which was payment for another 10
kilograms of cocaine. During a search of Varnedoe’s residence, law enforcement
2
The PSI found that Varnedoe was responsible for 215 kilograms of cocaine. Varnedoe
objected to the PSI’s drug quantity, arguing that the trial testimony did not clearly establish that
Varnedoe transported that amount. After the parties read from portions of the trial transcript, the
district court sustained Varnedoe’s objection and found that Varnedoe was responsible for
between 50 and 150 kilograms of cocaine. Varnedoe did not object to the district court’s drug
quantity finding or specifically challenge the cocaine amounts in paragraphs 8 and 9 of the PSI
that were attributed directly to him. Moreover, the trial testimony was sufficient to support a
finding that Varnedoe personally transported at least 50 kilograms of cocaine during the course
of the conspiracy. See United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989)
(explaining that the sentencing court may rely upon evidence heard at trial as well as undisputed
statements in the PSI).
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found another $131,930 in his safe.
These activities indicate that Varnedoe was aware of and participated in the
workings of the larger drug conspiracy and was not merely a drug mule. Indeed,
the undisputed facts suggest Varnedoe was a trusted and important member of
Robinson’s drug conspiracy. Not only did Varnedoe transport large amounts of
drugs and money, he stored them at his residence for other participants in the drug
conspiracy.
Moreover, Varnedoe’s conduct was not less culpable than most other
participants in the drug conspiracy. Even if Varnedoe was less culpable than
Robinson, he was at least as culpable as the other identified participants, Robert
Donnell Marshall and Ronald Wilson, and arguably more so. Marshall and
Wilson accompanied Robinson on several trips and distributed the cocaine
Robinson provided them. Unlike Varnedoe, Marshall and Wilson did not own
vans equipped with hidden compartments, did not provide a residence for picking
up, dropping off and storing drugs and money, and did not introduce Robinson to
a cocaine source. Wilson once saw Robinson pay Varnedoe a $30,000 courier fee,
but Robinson paid Wilson only $2,500 and a few ounces of cocaine for the three
trips he took with Robinson.
Given these facts, the district court did not clearly err when it found that
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Varnedoe played more than a minor role in the drug conspiracy.
AFFIRMED.
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