[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-12657

Non-Argument Calendar

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D.C. Docket No. 2:11-cr-14054-JEM-2

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

SAIL EMILIANO MARTINEZ, 

a.k.a. Saul Castro Martinez, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(January 11, 2013)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM: 

Sail Martinez appeals his total sentence of 84 months’ imprisonment, 

imposed after he pled guilty to conspiracy to commit robbery, in violation of 18 

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U.S.C. § 1951(a) (Count 1), and carrying and possessing a firearm in furtherance 

of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). For the 

reasons set forth below, we affirm Martinez’s sentences.

I.

Martinez’s presentence investigation report (“PSI”) provided that Martinez 

and his co-conspirator, Geovani Sales, solicited a confidential informant to rob a 

money courier, and Sales and Martinez told the informant that they would obtain a 

firearm for the informant’s use in the robbery. The confidential informant 

introduced Sales, Martinez, and their co-conspirator, Jose Rosales, to an 

undercover officer, and Sales and Martinez solicited the officer to commit the 

robbery. Martinez told the officer to smash the driver’s side window of the 

courier’s vehicle in order to put the gun to the courier’s head. Martinez further 

told the officer that the courier would not resist. In a post-arrest statement, 

Martinez admitted to participating in the planning of the robbery. 

The PSI stated that, as to Count 1, Martinez had a base offense level of 20, 

pursuant to U.S.S.G. § 2B3.1(a), as his offense involved robbery. A

mitigating-role adjustment was not recommended, pursuant to U.S.S.G. § 3B1.2. 

As to Count 3, a five-year consecutive term of imprisonment had to follow the 

term of imprisonment imposed as to Count 1. 

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At sentencing, Martinez objected that he should receive a two-level 

minor-role reduction, pursuant to § 3B1.2(b). Although Martinez was uncertain 

and could not prove it, the “victims” in the case may have been part of the 

underlying conspiracy, which was relevant to whether Martinez deserved a 

minor-role reduction. Martinez noted that a statement in the PSI provided that the 

couriers would not resist when a gun was pointed at them. Rosales had stated in 

his proffer that Sales’s brother may have warned the victims of Sales’s intention to 

rob the victims. The court rejected as speculation Martinez’s assertion concerning 

the victims being involved in the conspiracy and determined that the minor-role 

adjustment did not apply. The court imposed a total sentence of 84 months’ 

imprisonment.

II.

On appeal, Martinez argues that the district court clearly erred in not 

reducing his base offense level by two levels for his minor role in the offense, 

pursuant to § 3B1.2(b), because the PSI indicated that the robbery was Sales’s 

idea, Sales placed the firearm in the vehicle, Martinez did not plan the robbery, and 

Martinez was only to receive $5,000 for his role in the conspiracy. Further, the 

victims of the offense may have been part of the underlying conspiracy. 

We review a district court’s denial of a role reduction for clear error. United 

States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). The defendant 

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bears the burden of establishing his minor role in the offense by a preponderance 

of the evidence. Id. Furthermore, in making the ultimate determination of the 

defendant’s role in the offense, the court does not have to make any specific 

subsidiary factual findings. United States v. De Varon, 175 F.3d 930, 939 (11th 

Cir. 1999) (en banc). Thus, so long as the court’s decision is supported by the 

record and the court resolves any disputed factual issues, a simple statement of the 

court’s conclusion is sufficient. Id.

The Sentencing Guidelines provide for a two-level decrease to a base 

offense level if a defendant was 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., 

comment. (n.5). In determining whether § 3B1.2(b) applies, the district court must 

compare the defendant’s role in the offense with the relevant conduct for which he 

has been held accountable with respect to calculating his base offense level. 

Bernal-Benitez, 594 F.3d at 1320. The court may also compare the defendant’s 

conduct with that of the other participants in the offense. Id. The fact that a 

defendant’s role may be less than that of other participants engaged in the relevant 

conduct is not necessarily dispositive, as it is possible that none are minor 

participants. De Varon, 175 F.3d at 944.

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In this case, the undisputed statements in the PSI provide that Martinez was 

involved in the planning of the robbery and in obtaining the firearm to be used in 

the robbery. See United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006)

(providing that unobjected-to facts in the PSI are deemed admitted). Martinez was 

only held accountable for the robbery with respect to his base offense level 

calculation, and thus, the relevant conduct attributed to him in calculating his 

guideline range was identical to his actual conduct. See Bernal-Benitez, 594 F.3d 

at 1320. Even if Martinez was less culpable than Sales, that alone does not 

demonstrate that Martinez was a minor participant. See De Varon, 175 F.3d at 

944. 

Finally, the district court did not clearly err in rejecting Martinez’s argument 

that the money courier may have been involved in the underlying conspiracy. 

Neither Rosales’s proffer that Sales’s brother may have warned the victims of 

Sales’s intent to rob them, nor Martinez’s statement to the undercover officer that 

the victims would not resist, showed that the victims were part of the conspiracy. 

Thus, Martinez’s theory that the victims were involved in the robbery was mere 

speculation. Even if the victims were involved in the conspiracy, Martinez would 

not be entitled to a minor-role reduction due to his involvement in planning the 

robbery and obtaining a firearm. Based on the above, the district court did not 

clearly err in denying Martinez’s request for a minor-role reduction.

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For the foregoing reasons, we affirm Martinez’s sentences.

AFFIRMED.

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