FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 November 18, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-12107

Non-Argument Calendar

________________________

D. C. Docket No. 04-00101-CR-FTM-29-SPC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOSE MANUEL GONZALEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(November 18, 2005)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
 This total sentence represents the guidelines calculation with respect to Count 1 and the 1

mandatory 60-month consecutive sentence with respect to Count 2. (See R3 at 12, 15; R1-90 at 2).

2

Jose Manuel Gonzalez appeals his total 93-month sentence, imposed after 1

he pled guilty to one count of conspiracy to commit robbery and one count of

carrying a firearm during a crime of violence, violations of 18 U.S.C. §§ 1951(a)

and 924(c)(1)(A)(i), respectively. On appeal, he argues that he was entitled to a

two-level minor role reduction pursuant to U.S.S.G. § 3B1.2. For the reasons set

forth more fully below, we affirm.

Gonzalez pled guilty before a magistrate to the above-referenced offenses. 

According to the undisputed facts in the presentence investigation report (PSI), the

offense conduct began around August 25, 2004, when an undercover ATF agent

told Renato Lebron that he was a disgruntled courier for a Colombian narcotics

trafficking organization looking for a home-invasion crew capable of robbing a

narcotics stash house, and that the agent could meet with Lebron in a few weeks to

discuss the plan.

On September 8, the agent met with Lebron, and asked Lebron if he were

capable of robbing the Colombians’ stash house, to which Lebron responded that

he had done “big jobs” before. The agent provided details to Lebron, and informed

him of when the next delivery was scheduled to arrive. Lebron wanted to know the

address of the stash house, but the agent indicated that the address would not be
3

known until 30 minutes before the scheduled pick up. Lebron told the agent that

he had two associates who would assist him with the robbery, and stated he had the

people, the pistols, and everything else he needed to complete the robbery. Lebron

and the agent agreed to split the proceeds of the robbery, and Lebron indicated that

his plan was to enter the stash house behind the agent, otherwise they would have

to enter as impersonating police officers. 

Less than a week later, a CI informed ATF agents that Lebron had recruited

four individuals to assist him with the robbery, and reported that Lebron had two

nine-millimeter pistols with silencers, a machine pistol with silencer, a bullet proof

vest and masks, and a police interceptor, which was to be used as the getaway car. 

Later, the CI informed agents that Lebron had indicated that firearms, silencers,

and vests would be used by the four individuals conducting the robbery, and that

Lebron had no intention of sharing the proceeds. 

On October 6, the agent met with Lebron, who indicated that cocaine would

be arriving on October 8. Lebron stated that his crew would be armed, and that his

plan was to infiltrate the stash house as the agent was exiting. During the meeting,

Margarito Cruz Sanchez arrived and greeted Lebron and the agent, who, after

receiving Lebron’s approval, told Sanchez and Lebron about the undercover

scenario.
4

On October 8, surveillance agents observed Lebron, Benjamin Gutierrez,

Gonzalez, and Sanchez arrive at a personal storage facility in Naples, Florida. 

Sanchez was driving a white Cadillac, with Gonzalez in the front passenger seat

and Lebron and Gutierrez in the backseat. Gonzalez remained in the car while the

other three passengers exited. The agent then arrived and opened the driver’s side

door, communicating to all of the individuals, including Gonzalez, that there would

be two individuals in the stash house, one of whom was armed. Gonzalez was seen

nodding his head in an affirmative manner while listening. Lebron explained that,

as the agent exited the stash house, he would “tie up” the agent, at which point

Gutierrez would put a gun to the agent’s head and demand that he comply. The

agent indicated that the guards at the stash house would likely shoot back if Lebron

or a member of his crew fired first.

As the agent began walking away, law enforcement arrived on the scene,

arresting Lebron, Gutierrez, Gonzalez, and Sanchez. A search of the Cadillac

revealed a loaded .9mm semi-automatic pistol, a .380 caliber semi-automatic

pistol, and three particle masks, as well as four latex gloves. After being advised

of his rights, Lebron stated that he had discussed the plan with each member of the

conspiracy, and stated that each person had an assigned job, Gonzalez’s task being

to stay with the getaway car. Gonzalez, in a post-arrest statement, disclosed that
5

Lebron had asked him, on October 7, if he wanted to drive and make some money. 

On October 8, Gonzalez went to Lebron’s home, met with Lebron, Gutierrez, and

Sanchez, and they drove to a convenience store, where Gonzalez noticed the guns

in the car.

At his plea colloquy, Gonzalez admitted that he knew that there was going to

be a robbery. He recalled seeing the guns in the car approximately five minutes

before arriving at the storage facility, and that the guns were behind the front

passenger’s seat. Gonzalez stated that his job was to drive the getaway car and

that, initially, he did not know who or what was going to be robbed. It was not

until they were on their way to the storage facility that Gonzalez learned that drugs

were the target of the robbery. Gonzalez stated that he was never supposed to go

to the residence or the place where the robbery was to take place, and that his only

job was to drive the other defendants to a place, drop them off, and then pick them

up. For his part, Gonzalez was supposed to receive $5,000. Finally, Gonzalez

stated that he believed the guns in the car were going to be used in the robbery. 

The district court accepted Gonzalez’s plea as knowing and voluntary.

The PSI did not group Count 1 (robbery) with Count 2 (carrying a firearm

during a crime of violence) to avoid double counting and, because Count 2 carried

a statutorily mandated consecutive sentence, only calculated a guideline range for
6

the robbery charge. As to the robbery count, the PSI set Gonzalez’s base offense

level at 20, pursuant to U.S.S.G. § 2B3.1(a). Gonzalez’s offense level was not

enhanced for the possession of a firearm because of the separate firearm charge

under 18 U.S.C. § 924(c), but a one-level enhancement was added because the

taking of cocaine was the object of the offense, pursuant to U.S.S.G. § 2B3.1(b)(6). 

The PSI next determined that Gonzalez’s role in the offense was that of an “active

and average participant,” and he was not given either an aggravating or mitigating

role adjustment. Gonzalez was then credited with a three-level reduction for

acceptance of responsibility under § 3E1.1 for a total offense level of 18. With no

criminal history, Gonzalez was a category I, which, at offense level 18, provided

for an advisory sentencing range of 27-33 months’ imprisonment, with a

mandatory 60-month sentence to be imposed consecutively for Count 2.

Gonzalez lodged only one objection to the PSI, arguing that he was a minor

participant in the offense and should receive a two-level reduction under U.S.S.G.

§ 3B1.2(b). At sentencing, Gonzalez argued that (1) he was substantially younger

than his codefendants; (2) his only role was as a driver, not an active participant in

the robbery itself; and (3) his role was minor compared to other participants, like

Gutierrez, who was involved in negotiations and was to actively participate in the

robbery by holding a gun to the agent’s head. 
7

The district court ruled against Gonzalez, finding that:

Certainly, Mr. Gonzalez’s role is different than the other three

participants; but I agree . . . that it was both active and integral to the

success. He was going to be the getaway driver, and I don’t see that

role being . . . substantially different than the roles of Mr. Sanchez and

Mr. Gutierrez. Mr. Lebron is a different situation, but . . . the Court

finds that the defendant should not be entitled to a minor role.

 

Thus, the court overruled Gonzalez’s objections and adopted the factual

findings and application of the guidelines as set forth in the PSI. Based on those

findings, it found Gonzalez’s total offense level to be 18, his criminal history

category to be I, with a resulting range of 27 to 33 months’ imprisonment as to

Count 1, and an additional 60-month consecutive sentence required for Count 2. 

After hearing from both Gonzalez and the government as to an appropriate

sentence for Count 1, the district court sentenced him to 33 months’ imprisonment

to be followed by a 60-month consecutive sentence on Count 2, for a resulting

sentence of 93 months’ imprisonment.

On appeal, Gonzalez argues that he was less culpable than most of the other

participants because the entire offense was arranged, planned, and discussed

among law enforcement and the other participants, not Gonzalez. He argues that

he had no role in the decision-making process, was told solely to stay in the vehicle

and serve as a getaway driver, and only joined the conspiracy at the very last

moment when told he could make some money by driving. Gonzalez argues that
8

he was made aware of the basic components of the offense just prior to being

arrested, and that requiring him to establish more to qualify for the reduction

would misinterpret the guideline and its purpose. He argues that, even though the

guidelines are no longer binding, the proper remedy would be a remand because

the guidelines were incorrectly calculated. 

“[A] district court’s determination of a defendant’s role in the offense is a

question of fact to be reviewed under the clearly erroneous standard.” United

States v. Rodriguez De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc). 

Under U.S.S.G. § 3B1.2(b), a defendant qualifies for a two-level reduction to his

offense level if he was a minor participant in the offense. U.S.S.G. § 3B1.2(b). 

The guidelines further define a minor participant as one “who is less culpable than

most other participants, but whose role could not be described as minimal.” Id.,

comment. (n.5). 

As we clarified in De Varon, when determining whether a minor-role

reduction is warranted, a district court should consider (1) whether the defendant

played a minor role in relation to the relevant conduct for which he was held

accountable and (2) where appropriate, the culpability of the defendant as

measured against that of other participants in the relevant conduct. De Varon, 175

F.3d at 940, 944. “[T]he conspiracy on which a defendant’s base offense level is
9

founded is the relevant conspiracy for determining role in the offense.” Id. at 942

(quotation omitted). “[T]he district judge is in the best position to weigh and

assess both the defendant’s role in her relevant conduct and the relative degrees of

culpability of the other participants in that conduct. Intensely factual inquiries

such as these are properly consigned to the experienced discretion of the district

judge.” Id. at 939.

We conclude that the district court did not clearly err by denying Gonzalez a

minor-role reduction. The district court found that Gonzalez’s role as a getaway

driver, while different from the other codefendants, was still an integral to the

success of the prospective criminal conspiracy to commit robbery. The relevant

conduct for which he was held accountable was for robbery and having the

objective of taking a controlled substance. Only because Gonzalez was separately

charged and sentenced for aiding and abetting the carrying of a firearm during a

violent crime did he avoid further accountability for it pursuant to U.S.S.G.

§ 2B3.1(b)(2)(C). However, the facts in the record indicate that Gonzalez was

aware that a robbery was going to take place, aware that there were guns that were

likely to be used during the commission of the robbery, aware that drugs were the

object of the crime, and was poised to earn $5,000 for driving the getaway car after

the commission of the crime. Indeed, the PSI reflects that Gonzalez nodded his
10

head affirmatively while the undercover agent gave instructions to codefendants. 

While it is true that Gonzalez’s role was not to personally carry a weapon or,

in a literal sense, commit the actual robbery by entering the premises and stealing

cocaine, his role in ensuring that the robbery was successful, i.e., by getting

himself and his codefendants quickly and safely away from the scene for the sum

of $5,000, made him as integral and average a participant as one actually

committing the robbery itself. Cf. United States v. Pinkney, 15 F.3d 825, 828 (9th

Cir. 1994) (persuasively noting that “one kind of average participant in a robbery

would be the person who drove the robber to the scene and then drove him or her

away again, and expected a share of the loot.”). 

Even though it has been argued that Gonzalez’s role, limited as it was, might

be worthy of a minor-role reduction, we have held that:

In the final analysis, this decision falls within the sound discretion of

the trial court. Indeed, we acknowledge that a similar fact pattern may

on occasion give rise to two reasonable and different constructions. 

This is inherent in the fact-intensive inquiry specifically contemplated

by the Guidelines. As the Supreme Court has recognized, a trial

court’s choice between ‘two permissible views of the evidence’ is the

very essence of the clear error standard of review. So long as the

basis of the trial court’s decision is supported by the record and does

not involve a misapplication of a rule of law, we believe that it will be

rare for an appellate court to conclude that the sentencing court's

determination is clearly erroneous. 

De Varon, 175 F.3d at 945 (citation omitted). 
11

Based on the foregoing, we conclude that the district court’s finding that

Gonzalez’s role was integral to the success of the criminal conspiracy and,

therefore, not substantially different from the roles of Sanchez and Gutierrez, is

amply supported by the record and is not clearly erroneous. We, therefore, affirm.

AFFIRMED.