FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 30, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16429

Non-Argument Calendar

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D. C. Docket No. 07-00279-CR-CAP-14-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOAQUIN SUAREZ FLORES,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(June 30, 2010)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:

Joaquin Suarez Flores (“Suarez”) appeals his total 304-month sentence for

conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§

846 and 841(a)(1) & (b)(1)(A)(ii), and conspiracy to launder money, in violation of
18 U.S.C. § 1956(h). On appeal, Suarez argues: (1) for the first time, that the

district court violated his Eighth Amendment rights by imposing a sentence that

constitutes cruel and unusual punishment; and (2) that the district court erred in

considering relevant conduct under U.S.S.G. § 1B1.3 in determining his base

offense level. After careful review, we affirm.

We review the legality of a sentence de novo. United States v. Moriarty,

429 F.3d 1012, 1023 (11th Cir. 2005). We review the sentencing court’s

application of the Sentencing Guidelines to the facts de novo, and the court’s

factual findings for clear error. United States v. Ellis, 419 F.3d 1189, 1192 (11th

Cir. 2005). Nevertheless, we review for plain error arguments which the defendant

failed to raise below. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005).

Plain error exists if defendant satisfies his burden of showing that there was (1)

error; (2) that is plain; (3) affects the defendant’s substantial rights in that it

affected the outcome of the trial; and (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Id.

First, we are unpersuaded by Suarez’s argument -- which he did not raise

below -- that the district court plainly erred by imposing a sentence that constitutes

cruel and unusual punishment in violation of the Eighth Amendment. The Eighth

Amendment forbids infliction of “cruel and unusual punishments.” U.S. Const.

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amend. VIII. In terms of non-capital sentences, the Eighth Amendment contains a

“narrow proportionality principle,” which would “come into play” in only extreme

instances. Ewing v. California, 538 U.S. 11, 20-21 (2003) (quotations omitted).

Thus, “outside the context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly rare.” Id. at 21

(quotation and brackets omitted).

We employ a two-step analysis in determining whether a defendant’s

non-capital sentence violates the Eighth Amendment. First, we “must make a

threshold determination that the sentence imposed is grossly disproportionate to

the offense committed.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.

2006) (quotation omitted). The defendant has the burden to show the alleged gross

disproportionality. Id. Second, after the defendant meets the threshold showing,

we “must then consider the sentences imposed on others convicted in the same

jurisdiction and the sentences imposed for commission of the same crime in other

jurisdictions.” Id. (quotation omitted). A sentence within the statutory limit is

generally neither excessive nor cruel and unusual under the Eighth Amendment.

See id. at 1243-44 (holding that, because the district court sentenced defendant

within the statutory limits, defendant had failed to make a threshold showing of

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disproportionality, and, thus, we did not need to consider the second step in

rejecting defendant’s Eighth Amendment challenge).

In this case, the district court did not err, much less plainly err, in imposing a

total sentence of 304 months’ imprisonment. Indeed, because a sentence within the

statutory limits generally does not violate the Eighth Amendment, and because the

district court sentenced Suarez within the statutory maximum of life imprisonment

under Count One, Suarez fails his initial burden to show that his total 304-month

sentence is grossly disproportionate to his offense. See id. While Suarez asserts

on appeal that his total sentence is grossly disproportionate compared to his limited

role in the conspiracy, particularly because he did not receive much financial

compensation and had no direct access to the drug proceeds found inside the truck,

the district court already accounted for his limited role as a transporter by imposing

a downward variance from his guideline sentencing range. Further, as explained

below, Suarez was held accountable for his own admitted conduct of transporting

approximately $3.5 million in drug proceeds, although the district court arguably

could have held him accountable for much higher amounts based on the drug

ledgers the government seized. In short, Suarez has failed to show that the

sentence, which rests within the statutory range, is grossly disproportionate to his

offense to constitute cruel and unusual punishment under the Eighth Amendment,

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and since Suarez fails to make a threshold showing of disproportionality, we need

not engage in the second step of conducting a comparative analysis. See id. at

1243.

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We also reject Suarez’s claim that the district court erred in considering

relevant conduct under U.S.S.G. § 1B1.3 to determine his base offense level. A

court uses a two-step process in determining the appropriate offense level under the

Sentencing Guidelines. United States v. Castellanos, 904 F.2d 1490, 1493 (11th

Cir. 1990). The court must first determine “which guideline section covers the

offense of conviction,” and then ascertain “the applicable offense level in

accordance with the relevant conduct section -- 1B1.3.” Id. (quotation omitted).

The guideline provision corresponding to Suarez’s base offense level for

both counts, U.S.S.G. § 2D1.1(a) (2008), refers to the Drug Quantity Table in §

2D1.1(c) to determine defendant’s base offense level, so long as the offense of

 While asserting the Eighth Amendment violation, Suarez makes the following 1

unrelated arguments in passing, namely, that: (1) the district court erred in denying him safetyvalve relief and a minor-role reduction, and in applying the obstruction-of-justice enhancement,

based on facts not found by the jury nor proven beyond a reasonable doubt; (2) he was unaware

of the exact amount of drug proceeds in the truck; and (3) the district court was “stripped” of its

discretion and forced to apply the Guidelines in a mandatory fashion at the expense of the 18

U.S.C. § 3553(a) factors. However, Federal Rule of Appellate Procedure 28 provides that the

argument section of an appellant’s brief must contain “appellant’s contentions and the reasons

for them, with citations to the authorities and parts of the record on which the appellant relies.” 

Fed.R.App.P. 28(a)(9)(A). We “may decline to address an argument where a party fails to

provide arguments on the merits of an issue in its initial or reply brief” because “[w]ithout such

argument the issue is deemed waived.” United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir.

2006). Suarez waived the additional arguments that he raises in passing by failing to provide

substantive arguments in support in his brief.

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conviction does not involve death or serious bodily injury resulting from the use of

the contraband. U.S.S.G. § 2D1.1(a). Under U.S.S.G. § 2D1.1(c), a defendant’s

base offense level is 38, which is the highest level available, if the offense involves

150 kilograms or more of cocaine. U.S.S.G. § 2D1.1(c)(1).

We have held that “[p]roper calculation of the Guidelines sentencing range

requires consideration of all relevant conduct.” United States v. Chavez, 584 F.3d

1354, 1367 (11th Cir. 2009). Under U.S.S.G. § 1B1.3, the relevant criminal

conduct taken into account to calculate a defendant’s base offense level includes,

among other things, “all acts and omissions committed” by the defendant, “all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity” that “occurred during the commission of the offense

of conviction,” and all harm that resulted from or was the object of the acts and

omissions. U.S.S.G. § 1B1.3(a)(1)(A), (B), and (a)(3). In an offense involving

contraband, a “defendant is accountable for all quantities of contraband with which

he was directly involved and, in the case of a jointly undertaken criminal activity,

all reasonably foreseeable quantities of contraband that were within the scope of

the criminal activity that he jointly undertook.” Id. comment. (n.2).

In this case, the district court did not clearly err in considering Suarez’s own

conduct under U.S.S.G. § 1B1.3 to determine that (1) his base offense level was

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38, and (2) he was not entitled to safety-valve relief or a minor-role reduction. We

recognize that the district court did not conclusively detail its findings as to drug

amount, but this level of detail was unnecessary, since the amount for which

Suarez was held accountable well exceeded 150 kilograms, and any amount over

150 kilograms rendered a base offense level of 38. Indeed, as the record shows,

the district court properly could have used any of the following drug quantity

amounts pursuant to § 1B1.3 to conclude that Suarez’s base offense level was 38:

(1) Suarez’s own conduct of transporting more than $3.5 million in a truck on the

day of his arrest, which translates to approximately 189 kilograms of cocaine using

the conversion rate of $18,500 per kilogram according to the PSI, or approximately

159 kilograms using Suarez’s proffered conversion rate of $22,000 per kilogram;

or (2) his own conduct of transporting a total of 1,199 kilograms of cocaine and

approximately $8.5 million in drug proceeds, based on drug ledgers seized from

the stash house, which detailed activities of transporters named “Tabla” and

“Cejas,” and the trial testimony that Suarez either was “Tabla” or “Cejas.”

Because Suarez’s own conduct of transporting, at minimum, approximately $3.5

million exceeds the equivalent of the 150 kilogram threshold under U.S.S.G. §

2D1.1(c)(1), the district court did not clearly err in finding that Suarez’s base

offense level was 38. See U.S.S.G. § 2D1.1(c)(1).

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Nor did the district court clearly err by considering Suarez’s own conduct --

of failing to provide truthful statements to the government and participating in the

conspiracy as a transporter -- in denying him safety-valve relief and a minor-role

reduction. As the record shows, the district court denied safety-valve relief

because testimony from DEA agents during trial -- that (1) the truck Suarez rode in

was parked continuously at the stash house until Suarez and his co-conspirator

drove it away on October 17, 2007, and (2) Suarez and his co-conspirator did not

stop the truck the entire time until they were pulled over by the police --

contradicted Suarez’s assertions to the government. Similarly, the district court

denied a minor-role reduction based on its finding that Suarez’s own conduct as a

transporter was integral to the conspiracy. Neither of these findings constitute

clear error.

As for Suarez’s reliance on out-of-circuit law criticizing U.S.S.G. § 1B1.3 as

contrary to legislative intent, this argument fails because we have affirmed the

application of § 1B1.3 in numerous prior cases. See Chavez, 584 F.3d at 1367-68

(holding that the district court did not clearly err in determining the drug quantity

attributable to a defendant based on relevant conduct, which included the

reasonably foreseeable acts of a codefendant); see also Castellanos, 904 F.2d at

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1494-97 (rejecting a defendant’s due process challenge to § 1B1.3). Thus, the

district court properly applied § 1B1.3 in calculating Suarez’s sentences.

AFFIRMED.

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