Filed: Nov. 28, 2006
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS - ELEVENTH CIRCUIT NOV 28, 2006 No. 06-11957 THOMAS K. KAHN Non-Argument Calendar CLERK - D.C. Docket No. 05-00413-CR-T-24-EAJ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISAAC CORTES, Defendant-Appellant. - Appeal from the United States District Court for the Middle District of Florida - (November 28, 2006) Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges. PER CURIA
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS - ELEVENTH CIRCUIT NOV 28, 2006 No. 06-11957 THOMAS K. KAHN Non-Argument Calendar CLERK - D.C. Docket No. 05-00413-CR-T-24-EAJ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISAAC CORTES, Defendant-Appellant. - Appeal from the United States District Court for the Middle District of Florida - (November 28, 2006) Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges. PER CURIAM..
More
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
NOV 28, 2006
No. 06-11957
THOMAS K. KAHN
Non-Argument Calendar
CLERK
--------------------------------------------
D.C. Docket No. 05-00413-CR-T-24-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC CORTES,
Defendant-Appellant.
---------------------------------
Appeal from the United States District Court
for the Middle District of Florida
-----------------------------------
(November 28, 2006)
Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Isaac Cortes appeals his 135-month sentence imposed
after he pled guilty to (1) possession with intent to distribute five kilograms or
more of cocaine while aboard a vessel subject to the jurisdiction of the United
States, in violation of 46 App. U.S.C. § 1903(a), (g); 18 U.S.C. § 2; and 21 U.S.C.
§ 960(b)(1)(B)(ii); and (2) conspiracy to possess with intent to distribute five
kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of
the United States, in violation of 46 App. U.S.C. § 1903(a), (g), and (j); and 21
U.S.C. § 960(b)(1)(B)(ii). No reversible error has been shown; we affirm.
Cortes asserts that the district erred in denying him a minor role reduction
pursuant to U.S.S.G. § 3B1.2(b). He contends that he was less culpable than the
other persons found on the boat (which was carrying 269 bales of cocaine)
because he (1) did not plan the smuggling operation, (2) had no authority over the
smuggled drugs or the boat’s other crew members, (3) did not know the source,
destination, or kind of drugs on the boat, (4) had not participated in other drug
smuggling operations, and (5) only assisted loading the drugs onto the boat.
Cortes also argues that he was a minor participant because he did not finance the
smuggling operation nor have a proprietary interest in the smuggled drugs.
We review for clear error “a district court’s determination of a defendant’s
role in the offense.” United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). Under U.S.S.G. § 3B1.2(b), “[a] defendant warrants a two-level
reduction for playing a minor role in an offense if he is less culpable than most
other participants, although his role could not be described as minimal.” United
2
States v. Ryan, 289 F.3d 1339, 1348 (11th Cir. 2002). The defendant has the
burden of establishing his role by a preponderance of evidence. De
Varon, 175
F.3d at 939.
We have set out two elements that inform the sentencing court’s
determination about a defendant’s role in an offense: (1) the defendant’s role in
the relevant conduct for which he has been held accountable and (2) the
defendant’s role as compared to that of other participants in his relevant conduct.
Id. at 940. About the first element, De Varon explains 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. About the second element, De Varon counsels that this
relative culpability inquiry includes “only those participants who were involved in
the relevant conduct attributed to the defendant. The conduct of participants in
any larger criminal conspiracy is irrelevant.”
Id. The first element is the more
important and, in many cases, may end the inquiry. See
id. at 945.
The district court committed no clear error in determining that Cortes’s role
in the offense was more than minor. About the first element, Cortes’s sentence
was based only on the relevant conduct for which he was held accountable at
3
sentencing: the 269 bales of cocaine seized from the drug smuggling boat. He was
held accountable for no larger quantity. And the district court correctly pointed to
the boat’s large drug quantity in denying Cortes a minor role reduction. See id. at
943 (noting that, in the drug courier context, the amount of drugs is a “material
consideration” in assessing a defendant’s role in his relevant conduct). About the
second element, Cortes was one of only nine persons on the boat, which was
carrying a very large cocaine delivery. He has failed to show that he was “less
culpable than most other participants in [his] relevant conduct,”
id. at 944; and we
see no clear error in the district court’s refusal to apply a minor role reduction in
this case.
Cortes next argues that his sentence was unreasonable under the Supreme
Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005). He contends
that, in determining his sentence, the district court failed to consider information
on the factors provided at 18 U.S.C. § 3553(a), including that he has a wife and
three children in Colombia, does not have a prior criminal history, and lacks
education and money. In addition, he asserts that the district court failed to
consider sufficiently the need to avoid unwarranted sentencing disparities because
he and the drug representative on the boat each received a sentence of 135 months’
4
imprisonment, which was longer than the sentence that one of Cortes’s co-
defendants -- who was also a mariner on the smuggling boat -- received.
Cortes was sentenced after the Supreme Court issued its decision in Booker;
so we review his sentence for reasonableness in the light of the factors set out in
18 U.S.C. § 3553(a). United States v. Winingear, 422 F.3d 1241, 1244-46 (11th
Cir. 2005). Under section 3553(a), a district court should consider, among other
things, the nature and circumstances of the offense, the history and characteristics
of the defendant, the need for adequate deterrence and protection of the public,
policy statements of the Sentencing Commission, provision for the medical and
educational needs of the defendant, and the need to avoid unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a)(1)-(7). A sentence within the advisory
Guidelines range is not per se reasonable, United States v. Talley,
431 F.3d 784,
787 (11th Cir. 2005); but “ordinarily we would expect a sentence within the
Guidelines range to be reasonable.”
Id. at 788. Reasonableness review is
“deferential.”
Id.
We conclude that Cortes’s sentence was reasonable. The district court
correctly calculated his Guidelines range as 135 to 168 months’ imprisonment;
5
and the court sentenced Cortes to the lowest point of that range.1 In addition, in
sentencing Cortes, the district court noted the section 3553(a) factors, commenting
in particular on Cortes’s poverty and the large amount of drugs involved in this
case. The district court judge was not required to discuss all of the section 3553(a)
factors at the sentencing hearing. See United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005) (explaining that “nothing in Booker or elsewhere requires the
district court to state on the record that it has explicitly considered each of the
section 3553(a) factors or to discuss each of the section 3553(a) factors”). And
nothing in the record convinces us that Cortes’s sentence was unreasonable in the
light of the section 3553(a) factors.2
AFFIRMED.
1
Except for disputing the district court’s decision not to apply a minor role reduction to his
sentence, Cortes does not challenge the district court’s calculation of his Guideline range.
2
The government asserts that, although Cortes asked the district court to sentence him below his
Guidelines range based on application of the section 3553(a) factors, his failure to object after
sentencing -- either that his sentence was unreasonable or that the district court did not consider
properly the section 3553(a) factors in determining his sentence -- indicates that we should review
Cortes’s challenge to the reasonableness of his sentence only for plain error. We need not decide
this issue because, even under a reasonableness standard, Cortes’s appeal fails.
6
