from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:15-cr-20290-JLK-1
MARCUS, JILL PRYOR and SILER, [*] Circuit Judges.
MARCUS, Circuit Judge
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.
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.
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.
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.
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.
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
(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
(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 ...