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United States v. Monzo

United States Court of Appeals, Eleventh Circuit

April 7, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MIGUEL MONZO, a.k.a. El Miki, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20290-JLK-1

          Before MARCUS, JILL PRYOR and SILER, [*] Circuit Judges.

          MARCUS, Circuit Judge

         Miguel Monzo appeals his total 120-month sentence, imposed at the low end of his advisory guideline range and at the statutory mandatory minimum, after pleading guilty to one count of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii), and 846.

         On appeal, Monzo argues that: (1) the district court erred in denying his request for a minor-role reduction; (2) the district court erred in assessing three criminal history points for a 2001 Nevada felony drug-possession conviction; and (3) the district court erred in assessing two criminal history points for a 2007 New Mexico misdemeanor concealing-identity conviction. Concerning the last two issues, Monzo further argues that without the district court's error in assigning these five criminal history points to him, he would have been eligible for relief under the Safety Valve, U.S.S.G. § 5C1.2, which allows a sentencing court to sentence a defendant without regard to any statutory minimum if the defendant does not have more than one criminal history point. The government responds, among other things, that because Monzo does not challenge one of the criminal history points he received, and because Monzo cannot succeed on both of the criminal history arguments he raises here, any error in one or the other would not have made him eligible for Safety Valve relief. After careful review, we affirm.

         I.

         First, we are unpersuaded by Monzo's claim that the district court clearly erred in denying his request for a minor-role reduction. We review a district court's denial of a role reduction for clear error. United States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). Clear error review is deferential, and "we will not disturb a district court's findings unless we are left with a definite and firm conviction that a mistake has been committed." United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010) (quotations omitted). The district court's "choice between two permissible views of the evidence" concerning the defendant's role in the offense will rarely constitute clear error "[s]o 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." United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en banc) (quotation and emphasis omitted). The defendant bears the burden of establishing his minor role by a preponderance of the evidence. Bernal-Benitez, 594 F.3d at 1320.

         The Sentencing Guidelines provide for a two-level decrease to a base offense level if the defendant was a minor participant in the criminal activity. U.S.S.G § 3B1.2(b). A minor participant is one "who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal." Id., cmt. n.5. Our leading case concerning the minor-role reduction -- De Varon -- has long instructed district courts considering a minor-role reduction to assess "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." 175 F.3d at 940.

         In De Varon, the defendant was a drug courier -- she had ingested and smuggled 70 heroin-filled pellets into the United States from Colombia. Id. at 934. We recognized that "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." Id. at 942-43. However, we declined to "create a presumption that drug couriers are never minor or minimal participants, any more than that they are always minor or minimal"; rather, "the district court must assess all of the facts probative of the defendant's role in her relevant conduct in evaluating the defendant's role in the offense." Id. at 943. As examples of relevant facts for the court to consider, we listed the "amount of drugs, fair market value of drugs, amount of money to be paid to the courier, equity interest in the drugs, role in planning the criminal scheme, and role in the distribution." Id. at 945. The en banc Court in De Varon stressed that this is "not an exhaustive list, " nor is "any one factor . . . more important than another, " especially since the determination is highly fact-intensive and "falls within the sound discretion of the trial court." Id. We ultimately concluded that it was well within the sentencing court's discretion to deny De Varon a minor-role adjustment, after it determined that she was central to the importation scheme; that she had carried a substantial amount of high-purity heroin on her person; that it was unclear from the record that she was less culpable than the other described participant in the scheme; and that she had furnished $1, 000 of her own money to finance the smuggling enterprise. Id. at 945-46.

         Consistent with De Varon, commentary to the Sentencing Guidelines has laid out factors a court should consider when faced with a minor-role claim:

(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from the criminal activity.
For example, a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for ...

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