United States v. Geovanny Zambrano

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 23, 2008
No. 07-13005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-20556-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEOVANNY ZAMBRANO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 23, 2008)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Geovanny Zambrano appeals his 46-month sentence for conspiracy to
possess with intent to distribute, and possession with intent to distribute, 100 grams
or more of heroin, violations of 21 U.S.C. § 846 and 21 U.S.C. § 841(1)(a). On
appeal, Zambrano argues that the district court erred by denying him a minor-role
reduction. In support of this argument, Zambrano identifies other individuals who
participated in the smuggling conspiracy, as well as unnamed handlers and
suppliers in Ecuador and the ultimate buyer in New York City, as discernable, and
more culpable, members of the conspiracy. Zambrano also highlights that the
particulars of the entire transaction were in the hands of others, and that he acted
without any discretion. He likens his involvement in the smuggling conspiracy to
a “local drug courier” acting as a “conduit.” After careful review, we affirm.
The district court’s determination as to whether a defendant qualifies for a
minor-role adjustment is a finding of fact that we review for clear error. United
States v. De Varon, 175 F.3d 930, 934 (11th Cir. 1999)(en banc). The proponent
of the downward adjustment always bears the burden of proving the mitigating role
in the offense by a preponderance of the evidence. Id. at 939.
The Sentencing Guidelines provide that a court should decrease a
defendant’s offense level by two if the court finds that the defendant was a “minor
participant” in the criminal activity. U.S.S.G. § 3B1.2. A defendant is a minor
participant if he is one who is “less culpable than most other participants, but
whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment. (n.5).
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In determining whether a minor-role adjustment applies, the district court
should consider the following two principles: “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.” De Varon, 175 F.3d at 940. On the first De Varon prong, we have
explained that, “[o]nly 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. As for the second
De Varon prong, we have determined that a district court should look to other
participants only to the extent that they (1) “are identifiable or discernable from the
evidence,” and (2) “were involved in the relevant conduct attributed to the
defendant.” Id. We have recognized, however, that the first prong set forth in De
Varon may, in many cases, be dispositive. Id. at 945. In discerning a defendant’s
culpability in the offense, some relevant factors include: the amount and fair
market value of the of drugs, the amount of money to be paid to the courier, the
equity interest in the drugs, the role in planning the criminal scheme, and the role
in the distribution. Id.3
Here, Zambrano was held accountable only for his own conduct in the
conspiracy: exchanging money for 698.9 grams of heroin and intending to
distribute the heroin in exchange for more money. According to the Presentence
Investigation Report (“PSI”), Zambrano: (1) provided his own funds to purchase
70 pellets of heroin; and (2) planned to make a $5,000 profit from the subsequent
sale of the heroin. Because Zambrano’s significant actual conduct was the same as
the conduct for which he was held accountable at sentencing, under the first prong
of the De Varon analysis, he was not entitled to a minor-role reduction.
Turning to the second principle of De Varon, the district court committed no
clear error err by finding that Zambrano did not play a minor role when compared
to the other participants. We are unpersuaded by Zambrano’s assertions that he did
not coordinate the smuggling venture, did not recruit other conspirators to smuggle
the heroin, and did not instruct any person in the United States. Even if the record
supports all of these factual assertions -- an issue we need not reach -- those facts
do not suggest that Zambrano played a minor role in the conduct for which he was
held accountable, but rather, tend to show that Zambrano was not involved in the
larger drug conspiracy. In short, that alone is not enough to support a mitigating
role adjustment. See De Varon, 175 F.3d at 944. According to the PSI, Zambrano
provided his own funds to purchase the heroin and planned to make a profit from
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the sale of the heroin. He located a buyer, “Coyote,” for the heroin himself, and
then contacted the confidential informant to set up a sale of the heroin. In short,
these facts, which were cited by the district court, all support the court’s ultimate
finding, on the second De Varon prong, that Zambrano did not play a minor role
compared to others in the offense for which he was held accountable. See De
Varon, 175 F.3d at 945.
On this record, the district court did not commit clear error when it denied
Zambrano’s request for a minor-role reduction.
AFFIRMED.
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