FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 27, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15204

Non-Argument Calendar

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D. C. Docket No. 02-20552-CR-UU

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OMAR OLIVEROS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 27, 2010)

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:

After pleading guilty, Omar Oliveros appeals his concurrent 115-month
sentences for conspiracy with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(b)(1)(A) and 846, and attempting to possess with intent to distribute

cocaine, also in violation of §§ 841(b)(1)(A) and 846. After review, we affirm, but

remand for the district court for the limited purpose of correcting a clerical error in

the judgment.

I. BACKGROUND

Because Defendant Oliveros claims he was entitled to a minor role reduction

in his sentence, we start with a review of the offense conduct.

A. Offense Conduct

In 2002, during a Drug Enforcement Agency (“DEA”) investigation into

drug trafficking in Colombia, an undercover agent and a confidential informant

(“CI”) negotiated with a cocaine source, “Arturo,” to ship 20 kilograms of cocaine

to Miami. Upon its arrival in Miami, two U.S. Customs Agents seized luggage

containing the cocaine.

The undercover agent and the CI coordinated with Arturo to deliver half the

cocaine to Jorge Cepero for $50,000. The agent and the CI met with Cepero, who

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arrived with Defendant Oliveros. When the CI asked to see the payment for the

The other half of the cocaine was to be delivered to Albert Torres. Torres and another 1

individual were arrested when they met with the agent and the CI to take delivery of the other 10

kilograms of cocaine.

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cocaine, Defendant Oliveros left and retrieved money in his car. The agent and the

CI had Cepero and Defendant Oliveros follow them to another location, and, as

Cepero and Oliveros inspected the cocaine, they were arrested.

Defendant Oliveros was released on bond pending trial. After his release,

Oliveros failed to appear in court as required by the conditions of his release.

Oliveros remained a fugitive for seven years until he was arrested in Mexico and

extradited to the United States in 2009. Once back in the United States, Oliveros

pled guilty to the two drug counts and to a separate charge of failing to appear

before a court as required by conditions of pre-trial release, in violation of 18

U.S.C. § 3146(a)(1).

B. PSI

The presentence investigation report (“PSI”) calculated a base level offense

of 32, pursuant to U.S.S.G. § 2D1.1(c)(4), based on a drug quantity of at least 5

kilograms but less than 15 kilograms. The PSI added a 2-level enhancement for

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obstruction of justice, pursuant to U.S.S.G. § 3C1.1, because Oliveros absconded

while on pretrial supervision. Although the PSI initially calculated an adjusted

offense level of 34, the revised PSI gave Oliveros a two-level safety valve

For purposes of calculating the offense level, the PSI grouped the failure to appear

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offense together with the drug offenses, pursuant to U.S.S.G. § 3D1.2(c), because the failure to

appear offense was treated as a specific offense characteristic in, or other adjustment to, the

guideline applicable to the drug offenses.

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reduction pursuant to U.S.S.G. § 2D1.1(b)(11) after the government confirmed that

Oliveros met the safety valve criteria.

The PSI recommended an adjusted offense level of 32 with a criminal

history category of I, yielding an advisory guidelines range of 121 to 151 months.

The statutory minimum for Oliveros’s drug charges is 10 years with a maximum of

life, and the statutory maximum for the failure to appear charge is 10 years

consecutive to any other sentence.

The PSI noted that Defendant Oliveros was born in Cuba, settled in Miami

in 1995 after fleeing Cuba on a raft, worked as a car mechanic in Miami and later

as a handyman in Mexico, and regularly sent money to support his daughter who

lived in Cuba with Oliveros’s mother. Because Oliveros was classified an

aggravated felon, he was subject to removal proceedings.

Oliveros objected to the PSI’s failure to give a two-level minor role

reduction. Oliveros argued that while Cepero had contact with the cocaine

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suppliers, set up the transaction, and had experience in drug trafficking, Oliveros

acted only as Cepero’s assistant.

Oliveros also requested a downward variance, arguing that he presented a

low risk of recidivism, that he fled to Mexico because of his perceived danger to

Oliveros also objected to not receiving a reduction for acceptance of responsibility,

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which the district court overruled. Oliveros does not appeal this ruling.

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himself or his family, that an unwarranted sentencing disparity would exist

between Oliveros and Cepero, that Oliveros already had spent five months in harsh

conditions in a Mexican prison while awaiting extradition, that he is a first-time,

non-violent offender, and that he had maintained employment to support his

mother and daughter.

C. Sentencing

At the sentencing hearing, the district court inquired about Oliveros’s

reasons for fleeing to Mexico for seven years while on pre-trial release. Oliveros’s

attorney explained that after Oliveros and Cepero were arrested, both agreed to

cooperate with the DEA and were released on bond. Cepero disappeared, leaving

Oliveros, who had no relationship with the cocaine suppliers and could not provide

the information the government wanted. Oliveros received an anonymous phone

call at work suggesting that it would be in his best interest to flee the country.

Because Oliveros feared that Cepero had let his contacts in South America know

that Oliveros was cooperating with the DEA, Oliveros decided to flee.

The government responded that Oliveros never told the agents of any threat

against him in order to avail himself of their protection, did not contact DEA or

Mexican authorities once he was in Mexico and would not have been found but for

the government’s own efforts.

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The district court denied Oliveros’ request for a minor role reduction,

stating:

I think that the amount of cocaine involved here and the defendant’s

own activities with respect to the ten kilograms of cocaine for which

he was involved in providing the money are significant enough that a

minor role reduction would not be appropriate here, even if he’s less

culpable than other people who can be identified. His role was very

significant. Obviously, he was entrusted with a very large sum of

money by the members of this drug trafficking organization in order

to assist in taking delivery of the ten kilograms of cocaine. And as I

said, this is a very large amount of cocaine, and I do not think that a

minor role reduction is warranted or established by a preponderance

of the evidence in this case.

After confirming that Oliveros’s advisory guidelines range was 121 to 151 months,

the district court stated it was inclined to impose a low-end sentence.

Oliveros argued in favor of a downward variance, pointing out that: (1) he

was a first-time nonviolent offender and a hard worker; (2) he had a low risk of

recidivism; (3) his flight, which was based on his fears of reprisal, substantially

increased his guidelines range; (4) he played a limited role in the drug importation

scheme; (5) he was incarcerated in harsh conditions in Mexico while awaiting

extradition; and (6) the court had received numerous letters from his family and

friends evidencing his good character. Oliveros’s sister, Zulay, spoke on his

behalf, stating that Oliveros had worked hard in honest jobs to help his mother and

his daughter. Oliveros addressed the court, apologizing for his actions.

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The district court denied the request for a downward variance, stating:

This is no small matter. This case involved a large amount of cocaine.

It’s a very serious offense. It requires a serious punishment, and

certainly deterrence is an important factor in any drug trafficking case,

especially when we’re dealing with someone who sought safe harbor

in this country, sought to come here and sought the privileges of

living here, and then turned around really a short time after arriving

and attaining residency here and so terribly offending against the

United States by committing such a serious crime. So, I think a

guideline sentence is what’s called for here after considering all of the

factors, I think the seriousness of the offense, the need for deterrence,

and frankly, the history and characteristics of the defendant, the fact

that he would flee. I’d like to point out that the defense attempts to

describe what allegedly caused him to flee as a threat. Even the

defendant’s own description of what occurred doesn’t even rise to the

level of a threat. And as [the government] pointed out, the defendant

had choices other than to flee. So, I think that taking those factors

into account as well as all the other factors, a guideline sentence is the

most appropriate sentence in this case.

The court stated that it had considered the parties’ statements, the PSI, the advisory

guidelines range (121 to 151 months), and the statutory factors and found a

sentence at the low end of the range to be fair, reasonable, and sufficient to punish

and deter Oliveros. The court imposed concurrent 115-month sentences for the

two drug counts and a consecutive 6-month sentence for Oliveros’s failure to

appear, for a total period of incarceration of 121 months. Oliveros appealed the

sentences on the drug counts, but did not appeal the consecutive six-month

sentence for failing to appear.

II. DISCUSSION

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A. Minor Role Reduction

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

cmt. n.5. The defendant has the burden of establishing his role in the offense by a

preponderance of the evidence. United States v. De Varon, 175 F.3d 930, 939

(11th Cir. 1999).

“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 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 that the

courier played an important or essential role in the importation of those drugs”).

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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.” De Varon, 175 F.3d at 944.

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The district court did not clearly err in denying Oliveros’s request for a twolevel role reduction. As the district court noted, even if Oliveros was less culpable

than Cepero, he still played a significant role in the drug deal considering he was

entrusted with the large sum of money, $50,000, needed to complete it. The large

quantity of drugs involved also militates against finding a minor role. See id. at

943 (explaining that the amount of drugs is relevant to determining a participant’s

role in a drug conspiracy). Furthermore, Oliveros was not held accountable for the

larger importation conspiracy, but only for the 10 kilograms of cocaine he and

Cepero intended to purchase with the $50,000 Oliveros brought to the negotiations.

Under the circumstances, Oliveros did not show he played a minor role in the 10-

kilogram cocaine transaction.

B. Substantive Unreasonableness

A sentencing court’s determination of a defendant’s role in an offense constitutes a 4

factual finding that we review for clear error. De Varon, 175 F.3d at 937.

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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 and then we look at whether the

sentence is substantively unreasonable under the totality of the circumstances. Id.

at 1190. The party who challenges the sentence has the burden to show it is

unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United

States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006). Although we do not

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apply a presumption of reasonableness, we ordinarily expect a sentence within the

correctly calculated advisory guidelines range to be reasonable. United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

Oliveros argues that his 115-month concurrent sentences are unreasonable

because the district court focused solely upon the advisory guidelines range and

did not adequately consider his unique circumstances, such as his first-time

offender status, his low risk of recidivism, his reasons for fleeing and his lesser

The § 3553(a) factors include: (1) the nature and circumstances of the offense and the 5

history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,

to promote respect for the law, and to provide just punishment for the offense; (3) the need for

deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed

educational or vocational training or medical care; (6) the kinds of sentences available; (7) the

Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)

the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to

victims. 18 U.S.C. § 3553(a). 

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role. Contrary to Oliveros’s claims, the district court heard and considered all of

these mitigation arguments. See United States v. Amedeo, 487 F.3d 823, 833 (11th

Cir. 2007) (explaining that the failure to discuss the defendant’s mitigation

arguments on the record does not mean the district court failed to consider or

ignored them). The district court concluded that Oliveros’s mitigating facts were

outweighed by seriousness of his offenses and the need for deterrence and did not

warrant a sentence below the advisory guidelines range. We have no reason to

disturb the district court’s weighing of the relevant factors. See id. at 832 (“The

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.” (quotation marks omitted)). Under the

circumstances, the district court did not abuse its discretion in imposing 115-month

concurrent sentences, which placed his drug sentences below the advisory

guidelines range of 121 to 151 months. In addition, even adding in the six-month

consecutive sentence, Oliveros has not shown his total sentence of 121 months is

substantively unreasonable.

C. Clerical Error

We sua sponte note that there is a clerical error in the judgment. See United

States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006) (“We may sua sponte raise

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the issue of clerical errors in the judgment and remand with instructions that the

district court correct the errors.”). The judgment states that Oliveros is to be

imprisoned for a term of “121 MONTHS. This term consists of 115 months as to

Counts One and Three in Docket No. 02CR20552 and 6 months as to Count One in

Docket No. 03CR20811, to be served concurrently.” The total amount of the

prison term and the district court’s statements during sentencing indicate, however,

that the six-month term must be served consecutively. The judgment should be

corrected to read, “This term consists of 115 months as to Counts One and Three in

Docket No. 02CR20552, to be served concurrently, and 6 months as to Count

One in Docket No. 03CR20811, to be served consecutively.” Accordingly,

although the underlying sentences are affirmed, we remand the case to the district

court to correct this clerical error.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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