FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 3, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15648

Non-Argument Calendar

________________________

D. C. Docket No. 07-00027-CR-T-17EAJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

YEFER DIONICIO MORENO-GOMEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 3, 2008)

Before ANDERSON, BIRCH and HULL, Circuit Judges. 

PER CURIAM:

Yefer Dionicio Moreno-Gomez is appealing his 168-month sentence
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imposed after he pled guilty to one count of conspiracy to possess with intent to

distribute at least five kilograms of cocaine and one count of possession with intent

to distribute at least five kilograms of cocaine, both while aboard a vessel subject

to the jurisdiction of the United States. On appeal, Moreno-Gomez argues that the

district court erred in denying his request for a minor-role reduction, and he

contends that a 168 month sentence is unreasonable in light of the 18 U.S.C. §

3553(a) factors. Based on our review of the record and the legal arguments, we

discern no reversible error and therefore AFFIRM. 

I. BACKGROUND

According to the undiputed facts in the presentence investigation report

(“PSI”), Yefer Dionicio Moreno-Gomez was one of five crew members aboard a

fishing vessel carrying approximately 2,313 kilograms of cocaine in international

waters. The United States Coast Guard boarded the vessel after receiving a report

that it was stopped and not fishing. Once on board, Coast Guard personnel

observed several bales of cocaine in plain view and ultimately recovered 106 bales

of cocaine. The crew on board the vessel consisted of three Costa Rican nationals

(the captain, a deck hand, and a fisherman) and two Colombian nationals (two deck

hands, one of whom was Moreno-Gomez). The Costa Rican government elected to

retain jurisdiction over the three Costa Rican nationals aboard the vessel, but the
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two Colombian nationals, Moreno-Gomez and his co-defendant, were brought to

the Middle District of Florida for prosecution. 

Moreno pled guilty to one count of conspiracy to possess with intent to

distribute at least five kilograms of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a) and

70506(a) and (b), and 21 U.S.C. § 960(b)(1)(B)(ii); and one count of possession

with intent to distribute at least five kilograms of cocaine while on board a vessel

subject to the jurisdiction of the United States in violation of 46 U.S.C. §§

70503(a) and 70506(a) and (b), 21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C. § 2. 

Based on the charges against him, Moreno-Gomez’s base offense level was

determined to be 38, pursuant to U.S.S.G. § 2D1.1(c)(1). He also received a twolevel reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a)

and a one-level reduction for timely notifying authorities of his intention to plead

guilty pursuant to U.S.S.G. §§ 3E1.1(a) and (b). With a total offense level of 35

and criminal history category I, Moreno-Gomez’s Guideline imprisonment range

was 168-210 months. 

Moreno-Gomez objected to not being given a two-level reduction under the

safety valve provisions. He also objected to not receiving a minor-role reduction,

arguing that he was entitled to such a reduction because: (1) he was not the owner
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of the vessel; (2) he was not the owner of the drugs; (3) he did not plan the route;

and (4) he did not determine who was to receive the drugs. The probation officer

responded that Moreno-Gomez was not entitled to such a reduction because of the

amount of cocaine on board the vessel as well as the small size of the crew and

Moreno-Gomez’s role as a guard. At the sentencing hearing, the district court

overruled Moreno-Gomez’s objection to not being given a two-level reduction for

the safety valve provisions and his objection that he should receive a minor-role

reduction. R4 at 5,12-18. Regarding the minor-role reduction, the district court

agreed with the probation officer’s position. Id. at 18. 

The district court sentenced Moreno-Gomez to 168 months imprisonment

and five years’ supervised release. Id. at 26. The district court stated: 

After considering the advisory sentencing guidelines and all of the

factors identified in Title 18, United States Code, Section 3353(a)(1)

through (7), the Court finds that the sentence imposed is sufficient but

not greater than necessary to comply with the statutory purposes of

sentencing. Sentence imposed is reasonable and adequate. 

Id. at 27-28. The district court asked whether counsel for the defendant or the

government had any objections to the sentence, other than those previously stated

for the record. Id. at 28. Moreno-Gomez’s counsel objected to the reasonableness

of the sentence. Id.
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II. DISCUSSION

On appeal, Moreno-Gomez first argues that he should have been given a

minor-role reduction based on his limited role in the smuggling operation. We

have “long and repeatedly held that a district court’s determination of a defendant’s

role in the offense is a finding of fact to be reviewed only for clear error.” United

States v. De Varon 175 F.3d 930, 937 (11th Cir. 1999) (en banc). Second,

Moreno-Gomez contends that his sentence of 168 months is unreasonable based on

the district court’s failure to properly consider the § 3553(a) factors. We review

final sentences imposed by the district court for reasonableness under an abuse of

discretion standard. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007)

(per curiam); Gall v. United States, 552 U.S. __, 128 S. Ct. 586, 597 (2007).

A. Minor-role Reduction

A district court may reduce a defendant’s base offense level by two if the

defendant was a minor participant in the offense. U.S.S.G. § 3B1.2. In

determining whether a minor-role reduction is warranted, a district court performs

a two-prong analysis examining (1) “the defendant’s role against the relevant

conduct for which he was held accountable,” and (2) the defendant’s “role as

compared to that of other participants in [his] relevant conduct.” De Varon, 175

F.3d at 940. The district court may consider any and all facts probative of the
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defendant’s role in the relevant conduct. Id. at 943. In the drug courier context,

relevant facts include, but are not limited to: the “amount of drugs, fair market

value of the drugs, amount of money to be paid to the courier, equity interest in the

drugs, role in planning the criminal scheme, and role in the distribution.” Id. at

945. We have not foreclosed the possibility that the amount of drugs in a courier’s

possession may be dispositive in the extreme case. Id. at 943. The defendant bears

the burden of establishing that he deserves a downward adjustment be a

preponderance of the evidence. Id. at 939. 

According to the record, the district court considered two relevant factors

under De Varon: (1) the quantity of drugs, and (2) Moreno-Gomez’s role as a deck

hand on the vessel, the same role held by three of the five crew members. R4 at

19; De Varon, 175 F.3d at 942-43. Moreno-Gomez argues that the court clearly

erred in refusing to consider that he neither owned any drugs nor had any role in

the distribution of the drugs. However, he does not argue that his role was

different from that of the other crew members. His assertion that he neither owned

the drugs nor had any role in their distribution is an attempt to compare his conduct

with the conduct of those in the wider conspiracy, not those who were involved in

the specific conduct for which he is being held accountable. See DeVaron, 175

F.3d at 940. Moreno-Gomez played a significant role in the crimes for which he is
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being charged. Thus, the district court properly applied the analysis established by

DeVaron and did not clearly err in denying Moreno-Gomez a minor-role reduction.

B. Reasonableness

The Supreme Court in Gall reviewed the reasonableness of a defendant’s

sentence in light of the factors laid out in § 3553(a). Gallu, 128 S. Ct. at 598. The

§ 3553(a) factors include, among others, the nature and circumstances of the

offense, the history and characteristics of the defendant, the sentencing guideline

range, and the need to avoid unwanted sentencing disparities. 18 U.S.C. § 3553(a). 

The district court is not required to state that it explicitly considered all the §

3553(a) factors or discuss each factor on the record. United States v. Scott, 426

F.3d 1324, 1329 (11th Cir. 2005). “[T]here is a range of reasonable sentences from

which the district court may choose” and “the party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in the light of

both that record and the factors in section 3553(a).” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005) (per curiam). When a sentence is within the

Guidelines, we do not presume reasonableness, but “ordinarily we would expect a

sentence within the Guideline range to be reasonable.” Id.

Given that Moreno-Gomez’s 168 month sentence is within the Guideline

range of 168-210 months, he must offer evidence to show his sentence is
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unreasonable in light of the § 3553(a) factors. Id. at 788. In his brief, MorenoGomez argues that he should have been given a shorter sentence due to his difficult

childhood, family responsibilities, poverty, and lack of education. The district

court judge had these facts available to her and stated that she considered all the §

3553(a) factors. The district court judge did not have to explicitly address every §

3553(a) factor during sentencing. Scott, 426 F.3d at 1329. We only reverse

sentencing determinations for abuse of discretion and Moreno-Gomez has not

shown that the district court abused its discretion. 

Moreno-Gomez also argues that because his co-defendant was sentenced to

only 108 months, the district court failed to avoid unwarranted sentence disparities

according to § 3553(a). The other defendant in this case was sentenced based on

an offense level of 33 which is lower than Moreno-Gomez’s level of 35. His codefendant received this two-level reduction for his substantial assistance in the

prosecution of others. The offense level calculations and the structure of the

Guidelines “demonstrate that the Sentencing Commission fully anticipated

sentencing disparity between defendants involved in the same offense.” United

States v. Chotas, 968 F.2d 1193, 1197 (11th Cir. 1992) (per curiam). 

Additionally, Moreno-Gomez argues that his sentence will be longer than the

sentences that the other men will receive in Costa Rica. However, the inclusion of
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sentence disparity in the § 3553(a) factors is meant only to apply to “unwarranted

disparities that exist[] in the federal criminal justice system, that system for which

the Guidelines are governing law.” United States v. Clark, 434 F.3d 684, 687 (4th

Cir. 2006). The district court’s imposition of a 168 month sentence was reasonable

and did not create an unwarranted sentence disparity. 

III. CONCLUSION

Upon careful review of the sentencing transcript and the presentence

investigation report, and upon consideration of the parties’ briefs, we discern no

reversible error. The district court correctly calculated the guidelines range and

considered the factors in 18 U.S.C. § 3553(a). Moreno-Gomez has not shown that

his sentence is unreasonable, and therefore we affirm the district court’s ruling. 

AFFIRMED.