United States v. Johny Alberto Calzada

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 2, 2012
No. 11-14157
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 8:10-cr-00545-JSM-TGW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JOHNY ALBERTO CALZADA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 2, 2012)
Before PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Johny Alberto Calzada appeals his sentence of 292 months of imprisonment
for conspiring to possess with intent to distribute 5 kilograms or more of cocaine
while onboard a vessel subject to the jurisdiction of the United States, 46 U.S.C.
§§ 70503(a), 70506; 21 U.S.C. § 960(b)(1)(B)(ii), and possessing with intent to
distribute 5 kilograms or more of cocaine while onboard that vessel, id.; 46 U.S.C.
§§ 70503(a)(1), 70506(a); 18 U.S.C. § 2. Calzada challenges the denial of his
request for a downward departure, United States Sentencing Guidelines Manual §
5H1.4 (Nov. 2010), and the reasonableness of his sentence. We affirm.
We lack jurisdiction to review the denial of Calzada’s request for a
downward departure. We cannot examine a discretionary decision not to depart
downward “unless the district court incorrectly believed that it lacked authority to
grant the departure,” and the record establishes that the district court “understood
that it could depart, but chose not to do so.” United States v. Dudley, 463 F.3d
1221, 1228 (11th Cir. 2006). The district court considered Calzada’s age and
physical ailments and determined, because he could “be adequately cared for in
the detention system,” that a downward departure was unwarranted. The record
does not establish that the district court failed to understand its authority to depart.
The district court did not abuse its discretion by sentencing Calzada to a
term of imprisonment at the low end of the advisory guideline range. Calzada, the
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captain of a Panamanian fishing vessel, attempted to smuggle into the United
States 640 kilograms of cocaine that had been concealed in the fish hold of his
ship. Calzada testified incredibly at trial that he did not know about the drugs
until a member of his crew used a satellite telephone to make arrangements to
transfer the drugs and blamed his “mistaken decision” to go to trial on the fact that
he “perhaps . . . did not understand well what was being translated . . . .” Calzada
complains about the lesser sentence received by Apolinar De La Cruz Yesquen,
who served on the ship’s crew and pleaded guilty to the same crimes, but Calzada
is not similarly situated to De La Cruz. See United States v. Langston, 590 F.3d
1226, 1237 (11th Cir. 2009). Calzada’s sentence is reasonable.
We AFFIRM Calzada’s sentence.
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