USA v. Henry Lerma, No. 07-11785 (11th Cir. 2007)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 07-11785 Non-Argument Calendar ________________________ NOVEMBER 19, 2007 THOMAS K. KAHN CLERK D. C. Docket No. 06-00279-CR-T-17TBM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HENRY LERMA, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (November 19, 2007) Before CARNES, BARKETT and HULL, Circuit Judges. PER CURIAM: Henry Lerma appeals his 168-month sentence for conspiracy to possess with intent to distribute 5 kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. App. § 1903(a), (g), (j) and 21 U.S.C. § 960(b)(1)(B)(ii), and possession with intent to distribute 5 kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. App. § 1903(a), (g), 21 U.S.C. § 960(b)(1)(B)(ii) and 18 U.S.C. § 2.1 Lerma was one of nine crew members on a small vessel transporting approximately 5,000 kilograms of cocaine. Lerma was one of four deck hands and took turns with the other deck hands driving the vessel in three-hour shifts. When the United States Coast Guard ( USCG ) came upon the vessel, one of the crew members instructed the others to pour gasoline on the vessel and set it on fire in an attempt to destroy the cocaine. The USCG boarded the vessel and extinguished the fire, but not before Lerma and another crew member sustained second and third degree burns that required medical attention at a hospital. Lerma was indicted and pled guilty to both counts. The presentence investigation report ( PSI ) set Lerma s base offense level at 38, pursuant to U.S.S.G. § 2D1.1(a)(3), based on the 5,000 kilograms of cocaine found on the vessel. The PSI recommended a three-level reduction for acceptance of 1 On October 6, 2006, the appendix to Title 46 was repealed and recodified as 46 U.S.C. §§ 70503 and 70506 with no relevant changes. See Pub. L. No. 109-304, 120 Stat. 1485 (2006). 2 responsibility, pursuant to U.S.S.G. § 3E1.1. With a criminal history category of I, the resulting guideline range was 168 to 210 months imprisonment. Lerma objected to the PSI s failure to include a two-level safety-valve reduction and a two-level mitigating-role reduction. At sentencing, the district court overruled Lerma s objections and imposed a 168-month sentence on both counts, to be served concurrently. Lerma filed this appeal. I. DISCUSSION A. Safety-Valve Relief On appeal, Lerma argues that the district court erred when it denied him a two-level reduction under the safety-valve provision of the Sentencing Guidelines.2 Under the safety-valve provision, if a defendant convicted of certain drug crimes satisfies certain criteria, a district court shall impose a sentence without regard to any statutory mandatory minimum, 18 U.S.C. § 3553(f), U.S.S.G. § 5C1.2, and also give a two-level reduction in the defendant s offense level, U.S.S.G. § 2D1.1(b)(9). A defendant has the burden of proving his eligibility for safety-valve relief. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). Among the criteria that must be met, the defendant must prove that the offense 2 We review a district court s safety-valve fact-finding for clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). 3 did not result in death or serious bodily injury to any person. U.S.S.G. § 5C1.2(a)(3) (emphasis added). Here, it is undisputed that two people sustained serious bodily injury during the offense. Lerma and one of his co-defendants were seriously burned and required hospitalization. Lerma admits these burns constituted serious bodily injury. Lerma points out that he sustained injuries and that he has already endured pain and suffering as a result of his injuries. He also argues that he saved another co-defendant s life by helping him put on a life jacket and pushing him overboard. The plain language of § 5C1.2(a)(3) states that a defendant is precluded from safety-valve relief if the offense resulted in serious bodily injury to any person. Thus, the injuries to Lerma s co-defendant alone preclude the relief. Furthermore, nothing in § 5C1.2 or 18 U.S.C. § 3553(f) provides for safety-valve relief where a co-defendant sustains serious injury, but the defendant also saved a co-defendant s life. Because Lerma did not meet the requirements of § 5C1.2(a)(3), the district court correctly denied Lerma a two-level safety-valve reduction. B. Mitigating-Role Reduction Lerma contends that the district court should have awarded him a two-level 4 mitigating-role reduction because he was merely a crew member aboard the vessel.3 If the defendant was a minor participant in the criminal activity, the district court decreases the offense level by two levels. U.S.S.G. § 3B1.2(b). A minor participant 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 cmt. n.5. If the defendant was a minimal participant in the criminal activity, the district court decreases the offense level by four levels. U.S.S.G. § 3B1.2(a). A minimal participant is one who plays a minimal role in concerted activity and the phrase is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. U.S.S.G. § 3B1.2 cmt. n.4. The defendant has the burden to establish his role in the offense by a preponderance of the evidence. United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc). In determining whether a mitigating-role reduction applies, the district court considers two principles: (1) the defendant s role in the offense compared to the relevant conduct attributed to him in calculating his base offense level; and (2) the defendant s role compared to that of other participants in the offense. Id. at 940- 3 A district court s determination of a defendant s role in an offense constitutes a factual finding to be reviewed only for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). 5 45. [I]n the drug courier context . . . the amount of drugs imported is a material consideration in assessing a defendant s role in [his] relevant conduct . . . . [and] may be dispositive in and of itself in the extreme case. Id. at 943. Additionally, when a drug courier s relevant conduct is limited to [his] 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. Here, Lerma was held accountable for only the amount of cocaine found on board the vessel. Thus, Lerma s relevant conduct was identical to his actual conduct in the importation scheme. Furthermore, the amount of drugs Lerma and his co-defendants were transporting 5,000 kilograms was substantial. In addition, Lerma did not show that he was less culpable than most of the other identifiable participants in the offense. Lerma was one of four deck hands on the vessel. As part of his job, Lerma took shifts driving the vessel. While Lerma and the other deck hands may have been less culpable than the captain of the vessel or the load guard, we cannot say Lerma was a minor participant. See id. at 944 (explaining that it is possible for there to be no minor participants in a conspiracy). Lerma s contention that the district court failed to make a specific comparison to Lerma s co-defendants is without merit. The district court stated on the record that Lerma was similarly situated with the other defendants . . . . In 6 any event, the district court is not required to compare each identifiable participant to the defendant on the record. See De Varon, 175 F.3d at 940 ( [A] district court is not required to make any specific findings other than the ultimate determination of the defendant s role in the offense. ). Thus, the district court did not clearly err in denying Lerma a mitigating-role adjustment. AFFIRMED. 7

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