FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 March 21, 2007

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-11902

Non-Argument Calendar

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D.C. Docket No. 05-00413-CR-T-24

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

POMPILIO DELGADO-MINA,

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

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(March 21, 2007)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Defendant-Appellant Pompilio Delgado-Mina appeals his 135-month

sentence imposed after he pled guilty to (1) possession with intent to distribute
 After Delgado-Mina informed the district court that he was not proceeding with his mitigating1

role objection, the district court judge addressed Delgado-Mina’s lawyer, stating “[y]ou had indicated

you were not going to pursue a minor role objection, but I assume you still are asking that [DelgadoMina] be sentenced outside of the advisory guidelines?” About the mitigating-role objection,

Delgado-Mina’s lawyer replied, “we did consider perhaps a minor role, but his role was, in all

candor, . . . just like everyone else, quite frankly.”

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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.

We first address Delgado-Mina’s contention that the district court erred in

denying him a mitigating-role reduction pursuant to U.S.S.G. § 3B1.2. Before

sentencing, Delgado-Mina filed a sentencing memorandum in which he argued

that, because his role in the drug smuggling operation was minimal or minor, he

was entitled to a reduction in his offense level under U.S.S.G. § 3B1.2. But at his

sentencing hearing, Delgado-Mina informed the district court that he was not

going to proceed on this claim; and the district court did not consider DelgadoMina’s earlier mitigating-role objection. 

1
 Even if we did consider Delgado-Mina’s mitigating-role argument for plain error, his argument 2

would fail. Under a plain-error analysis, the defendant must establish (1) error, (2) that is plain, (3)

that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation

of judicial proceedings. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied,

125 S.Ct. 2935 (2005). In this case, Delgado-Mina’s sentence was based only on the relevant

conduct for which he was held accountable at sentencing: the 5,443 kilograms of cocaine seized

from the drug smuggling boat on which he was traveling. See United States v. De Varon, 175 F.3d

930, 940 (11th Cir. 1999) (en banc) (explaining that the first element a sentencing court should

consider when determining a defendant’s role in an offense is “the defendant’s role in the relevant

conduct for which [he] has been held accountable at sentencing”). And Delgado-Mina has failed to

show that he was “less culpable than most other participants in [his] relevant conduct.” Id. at 944.

Therefore, sentencing Delgado-Mina without applying a mitigating-role adjustment was not plain

error.

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If a defendant raises -- and then knowingly withdraws -- an objection to his

sentence, we consider the objection waived and will not review it on appeal. See

United States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997) (refusing to apply

plain error review where defendant withdrew objection at sentencing despite

defendant’s awareness that the district court had committed error); see also United

States v. Olano, 113 S.Ct. 1770, 1777 (1993) (explaining that, in criminal cases,

plain error review extends to forfeited errors, where defendant fails to make a

timely objection, but not to waived errors, where defendant intentionally

relinquishes or abandons a known right). Here, Delgado-Mina has waived his

challenge to the denial of a mitigating-role reduction; and we do not consider this

issue on appeal.

2

We turn to Delgado-Mina’s argument that his sentence was unreasonable

under the Supreme Court’s decision in United States v. Booker, 125 S.Ct. 738
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(2005). He contends that, in determining his sentence, the district court should

have considered that he is “an undereducated 46-year old man who has spent his

entire life as a cook aboard fishing vessels.” Delgado-Mina also asserts that,

although he learned before leaving Colombia that the smuggling boat was

involved in suspicious activity, he stayed on the boat to avoid risking his family’s

safety. 

Delgado-Mina 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). 

We conclude that Delgado-Mina’s sentence was reasonable. The district

court correctly calculated his Guidelines imprisonment range as 135 to 168

months; and the court sentenced Delgado-Mina to the lowest point of that range. 

See United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (noting that
The government contends that Delgado-Mina’s failure to argue before the district court that his

3

sentence was unreasonable indicates that, instead of reviewing his sentence for reasonableness, we

should review Delgado-Mina’s challenge on appeal to the reasonableness of his sentence only for

plain error. We need not decide this issue because Delgado-Mina’s claim that his sentence was

unreasonable fails under either standard of review.

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“ordinarily we would expect a sentence within the Guidelines range to be

reasonable”). 

In addition, in sentencing Delgado-Mina, the district court noted the section

3553(a) factors, commenting in particular on the large quantity of cocaine

involved in this case. The district court judge also explained that she considered

specifically the nature and circumstances of Delgado-Mina’s offense; his history

and characteristics; and the need to provide adequate deterrence, protect the

public, and reflect the seriousness of his offense. 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 Delgado-Mina’s sentence was unreasonable in the light of the section 3553(a)

factors.3

AFFIRMED.
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