[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-11918

Non-Argument Calendar

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D.C. Docket No. 8:13-cr-00077-SDM-EAJ-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

JOSE PRIMITIVO NUNEZ-SANDOVAL, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 25, 2014)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: 

Jose Nunez-Sandoval pled guilty to possession and conspiracy to possess 

with intent to distribute at least 50 grams of methamphetamine. For these offenses, 

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Nunez-Sandoval was sentenced to a total term of 151 months of imprisonment. On 

appeal, Nunez-Sandoval challenges his sentence on two grounds: (1) the district 

court clearly erred when it declined to grant him a minor-role reduction pursuant to 

§ 3B1.2(b) of the United States Sentencing Guidelines; and (2) the district court 

imposed an unreasonable sentence by giving unjustifiable weight to the Sentencing 

Guidelines. After careful review, we affirm.

I.

The relevant facts are largely undisputed. Police obtained information 

indicating that Luis Enrique Esquivel-Mendoza was possibly engaged in illegal 

activity and was present at a truck stop in Georgia. They went to EsquivelMendoza’s location and, with his consent, searched his car, finding 999.5 grams of 

crystal methamphetamine and a .38-caliber revolver. According to EsquivelMendoza, he had agreed to transport the methamphetamine from Atlanta, Georgia,

to Polk County, Florida, for a man known as “Coyote.” Coyote had told him that

he would be paid upon arrival.

Esquivel-Mendoza agreed to work with police by completing the shipment 

in order to apprehend the person who was to receive the methamphetamine in 

Florida. To that end, he called the phone number that Coyote had provided him. 

The defendant, Nunez-Sandoval, answered the phone, identified himself as 

Coyote’s brother-in-law, and made plans to meet Esquivel-Mendoza at a restaurant

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in Florida. When they met at the restaurant, Esquivel-Mendoza instructed NunezSandoval to take the methamphetamine from the trunk of the car and put the 

money in the passenger compartment. Police officers arrested Nunez-Sandoval 

soon after he took control of the methamphetamine. Nunez-Sandoval later 

admitted that he was supposed to receive the methamphetamine, pay EsquivelMendoza, and store the drugs for Coyote. Esquivel-Mendoza had transported

drugs for Coyote several times but had never met Nunez-Sandoval.

II.

A federal grand jury returned a two-count indictment charging NunezSandoval with possession with intent to distribute at least 50 grams of 

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii), and 

conspiracy to do so, in violation of 21 U.S.C. § 846. Nunez-Sandoval pled guilty 

to both counts without a plea agreement.

Before sentencing, the probation officer prepared Nunez-Sandoval’s

presentence investigation report (“PSR”). In the PSR, the probation officer 

determined the base offense level to be 36 and then applied a three-level reduction 

for acceptance of responsibility, for a total adjusted offense level of 33. With a 

criminal history category of II, Nunez-Sandoval’s advisory guideline range was 

151 to 188 months of imprisonment. The statutory minimum for both counts was 

ten years, and the maximum was life. 

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At his sentencing, Nunez-Sandoval argued, consistent with arguments made 

in a sentencing memorandum, that his role in the conspiracy was minor relative to 

the other known participants, so he should have received a two-point reduction 

pursuant to U.S.S.G. § 3B1.2. He contended that, unlike “Coyote,” he played no 

part in the planning or supervision of the conspiracy and, unlike EsquivelMendoza, he did not transport the drugs across state lines and was not armed. The 

court overruled this objection, finding that Nunez-Sandoval had not shown that he 

was materially less culpable than the average participant or the specific 

comparators. 

Nunez-Sandoval then requested a variance down to the statutory minimum 

of 120 months based on his history and characteristics—having grown up 

impoverished in Mexico and having come to the United States to find work—as 

well as the minimal deterrent effect of a marginally higher sentence. He also asked 

the district court to consider a recent amendment to the Sentencing Guidelines, 

which would go into effect in November 2014, that would change the drugquantity table and reduce by two levels the base offense levels for all drug 

offenses. If that amendment applied in this case, Nunez-Sandoval asserted, his 

guideline range would have been 121 to 151 months of incarceration. 

The district judge acknowledged that he had the authority to vary downward 

“in sympathy” with the United States Sentencing Commission’s decision to reduce 

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the offense levels for drug offenses. But the judge declined to vary downward 

based on the Commission’s decision because doing so would infringe on the 

Commission’s and Congress’s ability to uniformly and systematically address the 

issue of whether the new drug-quantity table applies retroactively. The judge 

heard from the government, which requested a sentence of 151 months, and then 

imposed the low-end sentence of 151 months. 

After announcing the sentence, the district judge noted that he had 

considered the policies and guidelines of the Sentencing Commission, the advisory 

guideline range, the factors listed in 18 U.S.C. § 3553(a), the sentencing 

memorandum submitted by the defense, and the arguments of counsel. Regarding 

the offense, the judge explained that Nunez-Sandoval was convicted of a “serious 

offense for interstate transportation of a substantial quantity of methamphetamine” 

and that he “was an operative playing a crucial role.” As for Nunez-Sandoval’s 

history and characteristics, the judge noted that Nunez-Sandoval had a prior drug 

conviction and also explained that while Nunez-Sandoval had grown up in poverty, 

he also had had the opportunity in the United States to work but had chosen to 

engage in serious criminal conduct at the behest of Coyote. 

The district judge also discussed at length the difficulties in connecting the 

§ 3553(a) factors to a specific sentence. Remarking that he had been critical of the 

Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

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(2005), on the basis that it presumes that there is some formula to the process of 

applying the § 3553(a) factors, the judge found it “impossible to make distinctions 

based upon these aspirational factors [in § 3553(a)].” Furthermore, the judge 

stated, “It’s impossible to articulate how much sentence equals how much value in 

any one or all of those factors.” Notwithstanding these concerns, the judge 

concluded by stating that the 151-month sentence was his “best calculation” at 

“accomplish[ing] the statutory purposes of sentencing” for this “mainstream 

offense,” and that a sentence at the low end of the guideline range was appropriate 

and would avoid unwarranted sentencing disparities that may result from 

prematurely applying the amendment to the Sentencing Guidelines drug-quantity 

table. Nevertheless, the judge indicated his willingness to entertain a motion to 

reduce Nunez-Sandoval’s sentence in the future if the drug-offense amendment

were determined to be retroactive. Nunez-Sandoval now appeals his sentence.

III.

Nunez-Sandoval first contends that the district court clearly erred in refusing 

to grant him a minor-role reduction because he had no supervisory role or equity 

interest in the methamphetamine, and his role in the conspiracy was minor 

compared to that of the other participants. The determination of a defendant’s role 

in an offense is a question of fact, which we review for clear error. United States 

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v. Rodriguez De Varon (“De Varon”), 175 F.3d 930, 937-38 (11th Cir. 1999) (en 

banc). 

A two-level reduction to the offense level is appropriate if the defendant 

functions as 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, but 

whose role could not be described as minimal.” Id. § 3B1.2(b), comment. (n.5). 

The defendant bears the burden of showing, by a preponderance of the evidence, 

that he is entitled to the minor-role reduction. United States v. Rodriguez, 751 F.3d 

1244, 1258 (11th Cir.), cert. denied, (U.S. Oct. 6, 2014) (No. 14-5968).

In analyzing whether a minor-role reduction is warranted, a district court 

must consider two principles: (1) the defendant’s role as measured against the 

conduct for which he has been held accountable; and (2) the defendant’s role as 

compared to other participants in the relevant conduct. Id. The first principle 

recognizes that a minor-role reduction may be appropriate where the defendant is 

held accountable for conduct more extensive than his specific actions. De Varon, 

175 F.3d at 940-41. The second principle measures the relative culpability of the 

defendant in comparison to that of other identifiable participants in the relevant 

conduct. Id. at 944. Simply not being a supervisor or manager does not 

automatically entitle a defendant to a minor-role reduction. Rodriguez, 751 F.3d at 

1258. Nor is a defendant automatically entitled to a minor-role reduction for being 

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“somewhat less culpable” than other participants, “since it is possible that none are 

minor or minimal participants.” De Varon, 175 F.3d at 944. Instead, the 

determination is whether the defendant “was less culpable than most other 

participants” in the relevant conduct. Id. (emphasis in original).

We conclude that the district court did not err by declining to apply a minorrole reduction. With respect to the first principle, Nunez-Sandoval’s behavior was 

coextensive with the relevant conduct attributed to him. Because of that, he cannot 

prove that he is entitled to a minor-role reduction “simply by pointing to some 

broader criminal scheme in which [he] was a minor participant but for which [he] 

was not held accountable.” De Varon, 175 F.3d at 941. The defendant’s role as 

that of a “traditional drug courier,” as he concedes in his brief, does not alter that

principle. Id. at 942. “[W]hen a drug courier’s relevant conduct is limited to [his] 

own act of [distribution], a district court may legitimately conclude that the courier 

played an important or essential role in the [distribution] of those drugs.” Id. at 

942-43. Therefore, because the district court held him responsible only for the 

“substantial quantity” of methamphetamine that he had agreed to distribute, his 

relevant conduct was sufficient to support the court’s denial of the minor-role 

reduction. See also id. at 943 (noting that the amount of drugs is a “material 

consideration in assessing a defendant’s role” in the relevant conduct). This 

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analysis of Nunez-Sandoval’s role in the relevant conduct is dispositive of his 

claim of error under § 3B1.2(b). See id. at 945.

In any case, Nunez-Sandoval also has not shown that he was less culpable 

than most other participants in the crime. The record supports the district court’s 

finding that Nunez-Sandoval’s culpability for the relevant conduct was similar to 

that of Esquivel-Mendoza. Both were essential parties to the transportation and 

distribution of the methamphetamine, and both were acting pursuant to the 

directions of Coyote. While Nunez-Sandoval may have been somewhat less 

culpable than Esquival-Mendoza, in that the defendant did not possess a weapon or 

travel across state lines, that alone does not automatically entitle him to a minorrole reduction or render the district court’s denial of the minor-role reduction clear 

error. See id. at 944.

III.

Nunez-Sandoval next argues that the district court gave unjustifiable weight 

to the Sentencing Guidelines, resulting in an unreasonable sentence. He contends 

that the district judge’s comments on Booker indicate that the court failed to 

adequately consider the 18 U.S.C. § 3553(a) factors and instead formulaically 

applied the Sentencing Guidelines. 

We review the reasonableness of a sentence for an abuse of discretion. 

United States v. Victor, 719 F.3d 1288, 1291 (11th Cir. 2013). We first ensure that 

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the district court committed no significant procedural error, such as treating the 

guidelines as mandatory or failing to consider the § 3553(a) factors. Gall v. United 

States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). If a sentence is procedurally 

reasonable, we then examine whether the sentence was substantively reasonable. 

Id. The party challenging the sentence bears the burden of showing that it is 

unreasonable in light of the record and the § 3553(a) factors. United States v. 

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

The district court must impose a sentence sufficient, but not greater than 

necessary, to comply with the purposes of sentencing listed under § 3553(a)(2). In 

determining the sentence to be imposed, the court must consider the nature and 

circumstances of the offense, the history and characteristics of the defendant, and 

the need to avoid unwarranted sentencing disparities among defendants with 

similar records, among other factors. 18 U.S.C. § 3553(a)(1), (6). The weight to 

be given any particular § 3553(a) factor is a matter left to the sound discretion of 

the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). 

Therefore, we will vacate a sentence only if “we are left with the definite and firm 

conviction that the district court committed a clear error of judgment in weighing 

the § 3553(a) factors.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) 

(en banc) (internal quotation marks omitted). 

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We conclude that the district court committed no procedural error and 

imposed a substantively reasonable sentence. The court correctly calculated the 

guideline range and did not treat the guidelines as mandatory. The district judge’s 

statements regarding Booker reflect the manifest difficulty of determining how the 

§ 3553(a) factors should affect the sentence. While these comments also reflect an 

uneasiness with Booker and the advisory guideline system, the judge specifically 

acknowledged that he had the authority to sentence outside the guideline range 

based on the § 3553(a) factors. 

Nor do we find that the judge placed unreasonable weight on the guideline 

range and thereby imposed a substantively unreasonable sentence. Rather, the 

transcript of the sentencing hearing reflects that the judge was particularly 

concerned about the need to avoid unwarranted sentencing disparities among 

defendants found guilty of similar conduct in light of the changes to the drugquantity table. As Gall explained, “avoidance of unwarranted disparities was 

clearly considered” when setting the guideline ranges. 552 U.S. at 54, 128 S. Ct at 

599. Thus, the court properly considered that factor, among others, by giving 

careful consideration to the guideline range. 

Moreover, the court explicitly noted that it had considered the required 

sentencing factors and Nunez-Sandoval’s arguments at sentencing, and the court

discussed Nunez-Sandoval’s history and characteristics and the nature and 

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circumstances of the crime. United States v. Scott, 426 F.3d 1324, 1329-30 (11th 

Cir. 2005) (the district court’s explicit acknowledgement that it had considered the 

§ 3553(a) factors and the defendant’s arguments is sufficient to establish that the 

court did, in fact, consider them). After considering all of the relevant factors, the 

court arrived at a sentence at the low end of the guideline range, which we 

ordinarily expect to be reasonable. See United States v. Hunt, 526 F.3d 739, 746 

(11th Cir. 2008). Under the circumstances, Nunez-Sandoval has not shown that 

the sentence imposed in this case was substantively unreasonable. 

IV.

In sum, the district court did not clearly err in finding that Nunez-Sandoval 

was not a “minor participant” in the offenses under U.S.S.G. § 3B1.2(b), and the 

151-month sentence imposed was both procedurally and substantively reasonable.

AFFIRMED.

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