United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
matter comes before the Court upon consideration of
Defendant's pro se Motion for Minor Role Reduction in
Light of Amendment 794 (Doc. # 124), filed on March 31, 2017.
The Government responded on June 1, 2017. (Doc. # 133). For
the reasons below, Defendant's Motion is denied.
30, 2015, Defendant was one of four crew members onboard a
go-fast vessel carrying 740 kilograms of cocaine that was
intercepted by the U.S. Coast Guard approximately 130
nautical miles south-southwest of Puerto San Jose, Guatemala.
(Doc. # 61 at 5). Defendant was subsequently indicted on June
23, 2015. (Doc. # 1). In Count One of the indictment,
Defendant was charged with conspiring with others to possess
with intent to distribute five kilograms or more of cocaine
while onboard 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). (Id.) In Count Two, he was charged
with possession with the intent to distribute five kilograms
or more of cocaine while aiding and abetting others in
violation of 46 U.S.C. §§ 70503(a) and 70506(a), 21
U.S.C. § 960(b)1(B)(ii), and 18 U.S.C. § 2.
(Id.). Defendant pled guilty to Count One, and the
government dismissed count two pursuant to Fed. R. Crim. P.
11(c)(1)(A). (Doc. # 23). Consequently, he was sentenced to
120 months' imprisonment on October 22, 2015. (Doc. #
67). Defendant now moves this Court to reduce his sentence
pursuant to Amendment 794 to U.S.S.G. § 3B1.2. (Doc. #
Motion, Defendant argues his role as a crewmember onboard a
vessel falls within the scope of § 3B1.2, and, in light
of Amendment 794, entitles him to receive a minor role
reduction. (Doc. # 124 at 3). Defendant is incorrect,
however, as to the Amendment's retroactive applicability.
Section 1B1.10(a)(1) prescribes that only amendments listed
in § 1B1.10(d) can be retroactively applied, and
Amendment 794 is not listed in subsection (d). U.S.S.G.
§ 1B1.10(a)-(d); see also United States v.
Armstrong, 347 F.3d 905, 907-09 (11th Cir. 2003);
United States v. Gamarra-Murillo, No. 8:04-
CR-349-T-27EAJ, 2016 U.S. Dist. LEXIS 185457, at *2 (M.D.
Fla. Dec. 1, 2016).
Minor Role Adjustment
Amendment 794 could be applied retroactively, Defendant's
role was not minor under the Sentencing Guidelines. In light
of Amendment 794, Defendant argues he did not have a
proprietary interest in the criminal activity; “he was
merely being paid to perform certain task[s] by opportunistic
drug traffickers.” (Doc. # 124 at 3). He also notes
playing an essential or indispensable role in the criminal
activity no longer precludes a defendant from receiving an
adjustment under the Guidelines.
Court, however, finds Defendant's arguments unpersuasive.
For his role in the conspiracy, Defendant stood to make
approximately 15 years' worth of wages for just a couple
days' work. So, while Defendant may not have possessed
any proprietary interest in the criminal activity, he stood
to benefit substantially from his role in the conspiracy. In
addition, the list of factors provided by Amendment 794 is
non-exhaustive. As such, this Court has considered other
factors-in addition to Defendant's essential role in the
criminal activity-that weigh against a minor role adjustment.
established by the Guidelines and governing case law, this
Court's determination of a defendant's role in an
offense is informed by a two prong analysis: (1) “the
defendant's role in the relevant conduct for which [he]
has been held accountable at sentencing” and (2)
“[his] role as compared to that of other participants
in [his] relevant conduct.” United States v. De
Varon, 175 F.3d 930, 940 (11th Cir. 1999) (en banc).
Under the first prong, it is not enough that the defendant
merely points out his role in a larger criminal conspiracy;
rather, he must establish that he played a minor role in the
conduct for which he has already been held accountable.
Id. at 944. Under the second prong, this Court may
consider “only those participants who were involved in
the relevant conduct attributed to the defendant.”
the relevant conduct is limited to Defendant's role in
conspiring to possess with intent to distribute cocaine, to
which he pled guilty. Thus, he is being held accountable only
for his role as a crewman onboard a vessel transporting
cocaine, nothing more. Ultimately, the fact that
Defendant's role was relatively minor in comparison to
the criminal activity of the overall criminal enterprise is
immaterial. See Id.
all of the crewmen pled guilty to the same count and all,
with the exception of the boat's captain, received the
same sentence. (Doc. ## 67, 87, 89, 94). Therefore, when
compared to the other crewmen's sentences,
Defendant's sentence reflects this Court's
determination that he was equally culpable. Even if Defendant
could somehow establish he was the least culpable of the
crewmen, that fact alone is not dispositive. See Id.
(noting the possibility that none of the participants played
a minor role). ...