United States v. Florentino Soto

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 15, 2006
No. 05-12577
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00398-CR-T-17TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLORENTINO SOTO,
a.k.a. Florentino Junior Soto,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 15, 2006)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Florentino Soto appeals the 110-month sentence imposed after he pled guilty
to conspiring to possess with intent to distribute five kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 846, 841(b)(1)(A). On appeal, Soto argues the district
court erred at sentencing by failing to award (1) a minor-role adjustment, pursuant
to U.S.S.G. § 3B1.2, based on his status as a courier, and (2) a safety-valve
reduction, pursuant to U.S.S.G. § 5C1.2, because his criminal history was over-
represented under the Guidelines calculus. After careful review, we affirm.
We review de novo questions of law regarding the district court’s
application of the Guidelines. See United States v. Crawford, 407 F.3d 1174,
1178-79 (11th Cir. 2005) (“as was the case before [United States v. Booker, 543
U.S. 220 (2005)], the district court must calculate the Guidelines range
accurately”). A defendant seeking a minor-role reduction bears the burden of
proving that he is entitled to the reduction by a preponderance of the evidence.
United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc). The
district court’s determination of a defendant’s role in a criminal offense “is heavily
dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2 cmt. n.3(C).
Accordingly, we review that determination for only clear error. De Varon, 175
F.3d at 937. “So long as the basis of the trial court’s decision is supported by the
record and does not involve a misapplication of a rule of law, . . . it will be rare for
2
an appellate court to conclude that the sentencing court’s determination is clearly
erroneous.” Id. at 945. We review factual determinations under the safety-valve
provision for clear error. See United States v. Cruz, 106 F.3d 1553, 1557 (11th
Cir. 1997).
The parties are familiar with the relevant facts and we only summarize the
facts necessary to our analysis here. During a traffic stop in Kansas, Soto
consented to a search of his vehicle. Inside of a hidden compartment in Soto’s car,
law enforcement recovered 11 “bricks” of cocaine wrapped in plastic wrap and
weighing 8.993 kilograms. An ongoing investigation showed that Soto was
operating as part of a larger conspiracy distributing cocaine from California to
Florida. Soto pled guilty and proceeded to sentencing.
The statutory mandatory-minimum penalty for Soto’s offense of conviction
was 120 months’ imprisonment. See 21 U.S.C. § 841(b)(1)(A). The presentence
investigation report (“PSI”) assigned a base offense level of 32 and recommended
a 2-point downward adjustment for acceptance of responsibility, U.S.S.G.
§ 3E1.1(a), and a 1-point downward adjustment for Soto’s timely notice of his
intent to plead guilty, U.S.S.G. § 3E1.1(a) and (b). Thus, the probation officer
assigned Soto a total offense level of 29. As for criminal history, the PSI assessed
one point for Soto’s 2001 conviction for possession of alcohol by a minor, for
3
which adjudication had been withheld and Soto received a sentence of 36 months’
probation. See U.S.S.G. § 4A1.1(c). Soto was still on probation at the time he
committed the instant offense, thus warranting the assessment of two more
criminal history points. See U.S.S.G. § 4A1.1(d). With a total offense level of 29
and a criminal history category II (based on three criminal history points), the
recommended Guidelines range was 97 to 121 months’ imprisonment. After
taking into consideration the 120-month mandatory-minimum for Soto’s offense,
the effective Guidelines range was 120 to 121 months’ imprisonment. The PSI
also stated that Soto was then serving in Kansas a term of imprisonment resulting
from an offense that was relevant conduct to the instant offense. Thus, the PSI
noted the applicability of U.S.S.G. § 5G1.3(b), which governs imposition of
sentence on a defendant who was convicted of a crime while serving an
undischarged term of imprisonment for a prior conviction constituting relevant
conduct to the instant offense.
Over Soto’s objections, the district court adopted the recommendations of
the PSI, credited Soto for ten months of time he had already served in Kansas for a
conviction constituting “relevant conduct,” and accordingly imposed a 110-month
term of imprisonment. The court recognized the post-Booker advisory nature of
the Guidelines and stated that, “[a]fter considering the advisory sentencing
4
guidelines and all the factors identified in [18 U.S.C. § 3553(a)(1) through (7),] the
sentence imposed [was] sufficient but not greater than necessary to comply with
the statutory purposes of sentencing.” This appeal followed.
First, Soto argues that he should have been given a two-level minor-role
reduction pursuant to U.S.S.G. § 3B1.2 because, as a courier, he played a minor
role relative to other participants in the conspiracy. The Guidelines provide for a
two-level decrease where the defendant was a minor participant in any criminal
activity. See U.S.S.G. § 3B1.2(b). A minor participant is defined as “any
participant 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.3). To determine
whether the adjustment applies, a district court first should measure the defendant’s
role against the conduct for which he has been held accountable. See De Varon,
175 F.3d at 934. With regard to drug couriers, we have indicated that our holding
in De Varon “[did] not create a presumption that drug couriers are never minor or
minimal participants, any more than that they are always minor or minimal,” but
“[r]ather . . . [established] only that the district court must assess all of the facts
probative of the defendant’s role in [his] relevant conduct in evaluating the
defendant’s role in the offense.” United States v. Boyd, 291 F.3d 1274, 1277 (11th
Cir. 2002).
5
Where there is sufficient evidence, after measuring the defendant’s role
against the conduct for which he is being held accountable, a district court also
may measure the defendant’s conduct against that of other participants in the
criminal scheme attributed to the defendant. See De Varon, 175 F.3d at 943. In
making this inquiry, 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. See id. at 944 (stating
that “[t]he conduct of participants in any larger criminal conspiracy is irrelevant”).
Here, the relevant conduct attributed to Soto was the possession of 8.993
kilograms of cocaine, which represented the amount of cocaine found in Soto’s
vehicle. At the plea colloquy, Soto admitted to the amount of cocaine found in his
vehicle during the traffic stop and, at sentencing, he did not object to the PSI’s
calculation of the amount of cocaine found in his car. The possession of 8.993
kilograms of cocaine was sufficient to show that Soto’s role was not minor in the
relevant conduct of possession with intent to distribute over five kilograms of
cocaine. Cf. De Varon, 175 F.3d at 942-43 (observing “when a drug courier’s
relevant conduct is limited to her 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.”; observing that amount of drugs is “a material
6
consideration” in assessing the defendant’s role in offense and that amount of
drugs may be “the dispositive factor”). Therefore, the first principle of De Varon
precludes a minor role reduction and we discern no clear error in the district court’s
refusal to award the adjustment.1
Next, Soto argues he was entitled to a safety-valve reduction. Pursuant to 21
U.S.C. § 841(b)(1)(A), Soto faced “a term of imprisonment which may not be less
than 10 years[.]” Although U.S.S.G. § 5C1.2 provides that the district court “shall
impose a sentence in accordance with the applicable guidelines without regard to
any statutory minimum sentence,” to do so it first must find “that the defendant
meets the [safety-valve] criteria in 18 U.S.C. § 3553(f)(1)-(5).” U.S.S.G. §
5C1.2(a) (emphasis added).2 At Soto’s sentencing hearing, he challenged only the
1
Given Soto’s failure to carry his burden on the first De Varon prong, we need not reach
the second prong, but we nevertheless observe that this second principle would also defeat the award
of a minor-role reduction here. The PSI outlined that the conspiracy in which Soto was involved
included both “leaders” and “transporters,” and that the transporters may have taken possession of
the drugs on a consignment basis. Based on the amounts confiscated at other points in the
investigation, as outlined in the PSI, the 8.9 kilograms Soto possessed was a substantial amount.
Therefore, information before the district court suggested that Soto was an average member of the
conspiracy, something more than minimal or minor. In any event, the conduct of others who were
involved in the overall scheme is irrelevant to the assessment of Soto’s role, as he was not charged
with a larger drug trafficking conspiracy and the other conspirators were not identifiable from the
evidence. See De Varon, 175 F.3d at 944 (observing that, on second prong, “the district court may
consider only those participants who were involved in the relevant conduct attributed to the
defendant” and “[t]he conduct of participants in any larger criminal conspiracy is irrelevant”).
2
The safety-valve requirements are:
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines;
7
first safety-valve criterion of § 3553(f)(1). Guideline 5C1.2(a)(1), implementing
§ 3553(f)(1), provides for the safety-valve reduction if “the defendant does not
have more than 1 criminal history point, as determined under the Sentencing
Guidelines before application of [U.S.S.G. § 4A1.3(b)].” U.S.S.G. § 5C1.2(a)(1)
(emphasis added). Guideline 4A1.3(b), in turn, provides for situations where a
defendant’s criminal history category “substantially over-represents the seriousness
of [his] criminal history” or the likelihood of recidivism, by allowing for a
downward departure.
(2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another participant
to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing guidelines and was
not engaged in a continuing criminal enterprise, as defined in section 408 of
the Controlled Substances Act; and
(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.
18 U.S.C. § 3553(f).
8
However, a “defendant whose criminal history category is Category I after
receipt of a downward departure under this subsection does not meet the [first
criterion for the safety-valve] if, before receipt of the downward departure, the
defendant had more than one criminal history point under § 4A1.1[.]” U.S.S.G.
§ 4A1.3(b)(3)(B). Under U.S.S.G. § 4A1.1(d), the Guidelines instruct the court to
add 2 points to a defendant’s criminal history “if [he] committed the instant offense
while under any criminal justice sentence, including probation[.]” Simply put, the
assessment of two criminal history points for Soto’s commission of the instant
offense while serving a term of probation made Soto ineligible for safety-valve
relief. Accordingly, a correct application of the Guidelines prevented the court
from giving Soto the benefit of a safety-valve reduction.
Finally, to the extent Soto challenges the reasonableness of his sentence
under Booker, we can find no error. The district court expressly stated, after
consideration of the § 3553(a) factors, that the sentence was reasonable. The
offense committed involved a substantial amount of cocaine, and Soto was already
on probation. Moreover, Soto presented no history or characteristics so compelling
as to undermine the reasonableness of a standard sentence. The court sentenced
him within the Guidelines range, including specific directives as to Soto’s
education while incarcerated, pursuant to Soto’s request. As such, we can find
9
nothing to suggest that Soto’s sentence was unreasonable. We recently rejected the
government’s argument that we do not have jurisdiction to review sentences for
reasonableness. See United States v. Martinez, --- F.3d ---, 2006 WL 39541 *3
(11th Cir. Jan. 9, 2006) (rejecting government’s argument that this Court lacks
jurisdiction to review sentences for reasonableness under 18 U.S.C. § 3742); see
also United States v. Mickelson, --- F.3d ---, 2006 WL 27687 *2 (8th Cir. Jan. 6,
2006) (same).
We can find no legal error in the district court’s application of the
Guidelines, nor can we discern clear error in its factual findings. Accordingly, we
affirm Soto’s sentence.3
AFFIRMED.
3
In his initial brief, Soto also “moves to adopt co-appellants’ briefs as they may apply.”
According to our rules, parties wishing to adopt other parties’ briefs “shall include a statement
describing in detail which briefs and which portions of those briefs are adopted.” 11th Cir. R.
28-1(f); see also Fed. R. App. P. 28(i). We retain discretion to consider arguments as adequately
adopted despite an appellant’s failure to comply with the adoption requirements in instances such
as when not doing so would result in the anomaly of “revers[ing] some convictions and not others
when all defendants suffer from the same error.” See United States v. Gray, 626 F.2d 494, 497 (5th
Cir. 1980); Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (noting that
decisions by the former Fifth Circuit issued before October 1, 1981, are binding as precedent in this
Circuit). Not only does Soto not identify which co-appellant’s briefs he means, but he is the only
appellant in this action. Accordingly, Soto’s statement of adoption was inadequate to assert any
arguments other than the ones we have addressed here.
10