United States v. Paul Longoria

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 3, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-11017
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-00149-CAP-AJB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAUL LEE LONGORIA,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 3, 2010)
Before EDMONDSON, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Paul Longoria appeals the 144-month sentence imposed for conspiracy to
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possess and possession with intent to distribute cocaine. After a thorough review
of the record, we affirm.
I. Background
In 2007, Longoria was involved in the transport of more than 400 kilograms
of cocaine from Texas to Georgia. In the first transaction, one of Longoria’s co-1
conspirators hired a confidential informant to deliver a tractor trailer loaded with
cocaine from Texas to Longoria’s fencing company, where the 200 kilograms of
cocaine was off-loaded. After leaving Longoria’s business, the informant met
with authorities and handed over the proceeds from the drugs, an amount in excess
of three million dollars. In the second transaction, authorities stopped a tractor
trailer driven by another of Longoria’s co-conspirators. Although the police did
not find any drugs in the truck, they confirmed that the trailer had been at
Longoria’s business earlier that day. When they searched the business, they found
200 kilograms of cocaine.
Longoria explained his involvement as follows: He met a group of people in
a bar, and they asked him if he wanted to make easy money. He accepted and
received ten thousand dollars per delivery. Although he knew his conduct was
We take the facts from the plea colloquy and the presentence investigation report, to which1
Longoria did not object.
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illegal, he did not know the contents of the trucks.
To determine the applicable guideline range, the probation officer grouped
the two offenses together and assigned a base offense level of 38 in light of the
amount of drugs involved. The probation officer recommended a two-level
reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a), but no other
enhancements or reductions. Longoria had a criminal history score of one, which
placed him in category I. The resulting guideline range was 188 to 235 months’
imprisonment, and there was a statutory minimum sentence of ten years’
imprisonment. 21 U.S.C. § 841(b)(1)(A)(ii).
Longoria raised three objections to the calculations. First, Longoria argued
that he was entitled to a reduction for his mitigating role in the offense, U.S.S.G.
§ 3B1.2, because he did not know who the drivers were, was not involved in
hiring the drivers, and he had nothing to do with arranging for the cocaine to come
into the United States. He explained that his role was simply to off-load the drugs.
Second, he argued that he was entitled to a sentence below the mandatory
minimum under the sentencing guidelines safety-valve provision, U.S.S.G.
§ 5C1.2, because he had cooperated fully with the government and had identified
other participants as best he could. Third, he argued that he was entitled to an
additional one-point reduction for acceptance of responsibility under § 3E1.1(b)
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because he timely notified the government of his intent to plead guilty. He alleged
that the government was refusing to move for the additional reduction out of spite
and with an unconstitutional motive.
The district court overruled the objections and, after considering the
sentencing factors in 18 U.S.C. § 3553(a), determined that it would “depart three
levels” to avoid any sentencing disparity with the sentences imposed on
Longoria’s co-conspirators. With an adjusted level of 33, the guideline range was2
135 to 168 months’ imprisonment. The court sentenced Longoria to 144 months’
imprisonment. Longoria now appeals.3
II. Standards of Review
In reviewing the reasonableness of a sentence, we apply an abuse of
discretion standard using a two-step process. United States v. Pugh, 515 F.3d
1179, 1189-90 (11th Cir. 2008). First, we look at whether the district court
committed any significant procedural error, such as miscalculating the advisory
guidelines range, treating the guidelines as mandatory, failing to consider the 18
Although the court used the phrase “depart three levels,” it appears that the court imposed2
a variance under § 3553(a) rather than an actual guideline departure. The parties do not address this
issue or argue that the court erred in this respect.
Longoria’s counsel did not file a notice of appeal, and, as a result, Longoria filed a motion3
to vacate his sentence, 28 U.S.C. § 2255, on the ground of ineffective assistance of counsel. The
district court granted the motion, vacated the sentences, and reimposed the same sentence, after
which Longoria filed a timely notice of appeal.
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U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence. Id. at 1190. Then, we look at
whether the sentence is substantively unreasonable under the totality of the
circumstances. Id. Here, Longoria argues that his sentence is procedurally
unreasonable because the district court improperly calculated the guideline range.
We review a district court’s determination of a defendant’s role in the
offense for clear error . United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). We also review a district court’s factual findings concerning a
reduction for acceptance of responsibility for clear error. United States v.
Williams, 408 F.3d 745, 756 (11th Cir. 2005). When reviewing the denial of a
safety-valve reduction, we review the district court’s legal conclusions de novo
and its factual findings for clear error. United States v. Johnson, 375 F.3d 1300,
1301 (11th Cir. 2004). Under clear error review, we give great deference to the
district court, and we will not find clear error unless the record leaves us “with the
definite and firm conviction that a mistake has been committed.” United States v.
White, 335 F.3d 1314, 1319 (11th Cir. 2003); United States v. Sawyer, 180 F.3d
1319, 1323 (11th Cir. 1999).
III. Discussion
A. Role Reduction
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Longoria argues that he was entitled to a minor-role reduction because he
only provided a location to off-load the drugs and he did not have any decision-
making authority or sell or distribute the drugs.
Section 3B1.2 of the Sentencing Guidelines provides for a two-level
decrease if the defendant was a minor participant in any criminal activity.
U.S.S.G. § 3B1.2(b). A defendant is a minor participant if he is less culpable than
most other participants, but his role cannot be described as minimal. Id. § 3B1.2
comment. (n.5). The defendant has the burden of establishing his role in the
offense by a preponderance of the evidence. De Varon, 175 F.3d at 939.
“Two principles guide the district court’s consideration: (1) the court must
compare the defendant’s role in the offense with the relevant conduct attributed to
him in calculating his base offense level; and (2) the court may compare the
defendant’s conduct to that of other participants involved in the offense.” United
States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006). When the relevant
conduct attributed to the defendant is the same as his actual conduct, “he cannot
prove that he is entitled to a minor-role adjustment simply by pointing to some
broader scheme for which he was not held accountable.” Id.; see also De Varon,
175 F.3d at 942-43 (concluding that “when a drug courier’s relevant conduct is
limited to [his] own act of importation, a district court may legitimately conclude
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that the courier played an important or essential role in the importation of those
drugs”).
As to the second prong, the district court is permitted to “measure the
defendant’s conduct against that of other participants,” but only “where the record
evidence is sufficient.” De Varon, 175 F.3d at 934. Furthermore, “[t]he fact that a
defendant’s role may be less than that of other participants engaged in the relevant
conduct may not be dispositive of role in the offense, since it is possible that none
are minor or minimal participants.” Id. at 944.
Here, Longoria cannot show that he was entitled to a minor-role reduction
because he was held accountable only for his own conduct of off-loading and
storing 400 kilograms of cocaine. Longoria provided a place to store the cocaine
until it could be distributed, and he gave the money to the delivery person. Under
these facts, Longoria cannot show that he was a minor participant.
B. Acceptance of Responsibility
Longoria argues that he was entitled to an additional one-level reduction for
acceptance of responsibility because he gave consent to search his property and he
timely indicated his intent to plead guilty. He alleges that the government refused
to move for the additional reduction based on an unconstitutional motive,
specifically his refusal to waive his right to appeal.
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Section 3E1.1 of the U.S. Sentencing Guidelines provides, “[U]pon motion
of the government stating that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by timely notifying authorities
of his intention to enter a plea of guilty,” the district court may award a defendant
an additional one-level reduction for acceptance of responsibility under
§ 3E1.1(b) . . . .” U.S.S.G. § 3E1.1(b). “[A]n adjustment under subsection (b)
may only be granted upon a formal motion by the Government at the time of
sentencing.” U.S.S.G. § 3E1.1, comment. (n.6). The guidelines require a motion
from the government “[b]ecause the Government is in the best position to
determine whether the defendant has assisted authorities in a manner that avoids
preparing for trial.” Id. In addition, the “timeliness of [a] defendant’s acceptance
of responsibility is a consideration under” both subsections (a) and (b), and it is
“context specific.” Id.
Here, the government explained that it did not believe Longoria had been
completely candid during his cooperation. The government further explained that
Longoria did not notify it of his intent to plead guilty until about one week before
the trial was scheduled to begin. Because the additional one-point reduction must
be based on a motion by the government, the district court lacked authority to
apply the reduction in the absence of the government’s motion. Accordingly, the
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district court did not clearly err.
To the extent that Longoria contends the government acted with ill will, we
apply the same standard as we would to a review of the government’s decision not
to file a § 5K1.1 motion based on substantial assistance. United States v. Nealy,
232 F.3d 825, 831 (11th Cir. 2000) (citing Wade v. United States, 504 U.S. 181
(1992)); see also United States v. Lapsins, 570 F.3d 758, 769 (6th Cir. 2009)
(applying Wade to the § 3E1.1(b) context and citing cases from other circuits
doing the same).
An unconstitutional motive includes the government’s refusal to make a
motion based on suspect reasons such as race or religion. Wade, 504 U.S. at 186.
Here, Longoria alleged that the government refused to make the motion after he
chose not to waive his right to appeal as part of his plea agreement. We have
never held that such conduct would qualify as an improper motive. In the absence
of an allegation of improper motive and a substantial showing that the government
acted based on that unconstitutional motive, we will not review the government’s
decision. United States v. Forney, 9 F.3d 1492, 1502-03 (11th Cir. 1993).
Because Longoria cannot make a substantial showing of an unconstitutional
motive, the district court lacked the authority to review the government’s decision
not to move for an additional one-point reduction.
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C. Safety-Valve Provision
The safety-valve provision in the Sentencing Guidelines, U.S.S.G. § 5C1.2,
allows a court to impose a sentence without regard to any statutory minimum if the
defendant satisfies the five criteria in 18 U.S.C. § 3553(f)(1)-(5).4
Here, the parties agree that Longoria met the first four criteria. The only
issue here is whether Longoria “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.” 18
U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). To establish the fifth requirement,
The five criteria are:4
(1) the defendant does not have more than 1 criminal history point, as determined
under the sentencing guidelines;
(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 [§ 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.
U.S.S.G. § 5C1.2.
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“[t]he burden is on the defendant to come forward and to supply truthfully to the
government all the information that he possesses about his involvement in the
offense, including information relating to the involvement of others and to the
chain of the narcotics distribution.” United States v. Cruz, 106 F.3d 1553, 1557
(11th Cir. 1997). A district court cannot apply the safety valve if it determines the
defendant “withheld or misrepresented information.” United States v. Figueroa,
199 F.3d 1281, 1282-83 (11th Cir. 2000).
Here, Longoria permitted authorities to search his business and he
cooperated with the investigation into his conduct. When asked about others
involved, however, Longoria identified other participants by nickname only and
denied any knowledge of the larger conspiracy. He claimed he had met the co-
conspirators in a bar and did not know the contents of the trucks.
Longoria’s statements were inconsistent with the degree of his participation
in the scheme. Longoria played an integral role of the conspiracy; he off-loaded
400 kilograms of cocaine, housed the drugs until delivery, and handled over three
million dollars in payment for the cocaine. Given this level of responsibility and
involvement, it is unlikely that Longoria knew nothing about the conspiracy.
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Accordingly, Longoria has not met his burden.5
IV. Conclusion
For the foregoing reasons, we AFFIRM.
Longoria also filed a pro se appellate brief, raising ineffective-assistance-of-counsel claims.5
Although we granted leave to file the pro se brief, we decline to address the claim because the record
is not sufficiently developed for us to consider it on direct appeal. United States v. Bender, 290 F.3d
1279, 1284 (11th Cir. 2002).
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