             Case: 19-14778    Date Filed: 07/28/2020   Page: 1 of 8



                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 19-14778
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 5:17-cr-00046-PGB-PRL-1

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                    versus

ERIC PEDRO VALDEZ,

                                                        Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                                (July 28, 2020)

Before ROSENBAUM, NEWSOM, and LAGOA, Circuit Judges.

PER CURIAM:

     After a jury trial, Eric Valdez was convicted of conspiracy to distribute 500

grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and
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841(b)(1)(A). The trial evidence showed that Valdez was a drug courier who, on

March 23, 2016, delivered nearly four kilograms of 98% pure methamphetamine to

an individual cooperating with law enforcement. At sentencing, the district court

refused to give Valdez a guideline reduction for a minor role in the offense, see

U.S.S.G. § 3B1.2, and then sentenced him to 216 months in prison.

      On appeal, Valdez contends that the district court legally erred by denying the

§ 3B1.2 reduction solely on the ground that no role reduction is available when a

defendant is held accountable for only his own relevant conduct. We agree. Because

the guidelines make clear that Valdez is eligible for a role reduction and the court

appears to have based its decision on a single factor, rather than the totality of the

circumstances, we vacate and remand for resentencing. As a result, we do not at this

time consider Valdez’s other argument that the sentence is substantively

unreasonable because it was nearly twice the length of the sentences two more

culpable codefendants received.

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

States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016). “Clear error review is

deferential, and we will not disturb a district court’s findings unless we are left with

a definite and firm conviction that a mistake has been committed.” Id. (quotation

marks omitted). The defendant must prove his minor role in the offense by a

preponderance of the evidence. Id.


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      Section 3B1.2 provides for a two-level decrease to the defendant’s offense

level if he was a “minor participant” in the criminal activity, a four-level decrease if

he was a “minimal participant,” and a three-level decrease if his role was in between.

A “minor participant” is someone “who is less culpable than most other participants

in the criminal activity, but whose role could not be described as minimal,” U.S.S.G.

§ 3B1.2, cmt. n.5, while a “minimal participant” is one “who [is] plainly among the

least culpable of those involved in the conduct of a group,” id. § 3B1.2, cmt. n.4.

      In United States v. De Varon, we instructed that, in assessing a defendant’s

role in the criminal activity, the district court should consider two principles: first,

the defendant’s role in the relevant conduct for which he has been held accountable

at sentencing; and, second, his role as compared to that of other identifiable or

discernable participants in the relevant conduct. 175 F.3d 930, 940 (11th Cir. 1999)

(en banc).

      With regard to the first principle, the commentary to § 3B1.2 clarifies that a

defendant who is held accountable for only the conduct in which the defendant was

personally involved may still receive a role reduction. U.S.S.G. § 3B1.2, cmt.

n.3(A). Specifically, the commentary advises that “a defendant who is convicted of

a drug trafficking offense, whose participation in that offense was limited to

transporting or storing drugs and who is accountable under § 1B1.3 only for the

quantity of drugs the defendant personally transported or stored may receive an


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adjustment under this guideline.” Id. Additionally, the fact that the defendant

performed a task that was “essential or indispensable” to the criminal activity “is not

determinative,” and the defendant’s role must still be evaluated to determine “if he

or she is substantially less culpable than the average participant in the criminal

activity.” Id., cmt. n.3(C).

      The decision whether to apply a mitigating role reduction is “based on the

totality of the circumstances and involves a determination that is heavily dependent

upon the facts of the particular case.” Id. Section 3B1.2’s commentary outlines a

non-exhaustive list of factors relevant to determining the defendant’s role. See id.

These factors include (a) “the degree to which the defendant understood the scope

and structure of the criminal activity”; (b) “the degree to which the defendant

participated in planning or organizing the criminal activity”; (c) “the degree to which

the defendant exercised decision-making authority”; (d) “the nature and extent of

the defendant’s participation in the commission of the criminal activity”; and (e) “the

degree to which the defendant stood to benefit from the criminal activity.” Id. “The

court must consider all of these factors to the extent applicable, and it commits legal

error in making a minor role decision based solely on one factor.” United States v.

Valois, 915 F.3d 717, 732 (11th Cir. 2019) (quotation marks omitted).

      In this case, the district court denied Valdez a role reduction on the ground

that “[t]he guidelines are clear that when an individual is held accountable only for


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their relevant conduct, then there is no minimal role, nor is there a minor role.” The

court noted that Valdez, in the presentence investigation report, was held

accountable for “just the conduct that [he] has been convicted of and not the relevant

conduct in the broader sense of the conspiracy.” The court further stated that,

although Valdez was not entitled to a role reduction, it would take into account

Valdez’s “overall involvement in the larger conspiracy and what his relative position

was, vis-à-vis the other individuals,” when evaluating the 18 U.S.C. § 3553(a)

factors.

      Later, in explaining its decision to sentence Valdez to 216 months in prison,

the district court observed that Valdez’s “role was less than the others in the sense

that [he] w[as] a person who was tasked with taking some of the most risky

activities,” which was a position usually “occupied by someone lower within the

organization.” In addition, the court noted, there were at least two other individuals

who “were placed higher than [he] in the chain of command” and “had greater

culpability.”

      Here, the district court erred by denying a reduction based on a single factor.

See Valois, 915 F.3d at 732. Our decision in United States v. Presendieu, 880 F.3d

1228, 1250 (11th Cir. 2018), is instructive here. In Presendieu, we found that the

district court legally erred when it “indicated that [the defendant] was not entitled to

a minor role reduction solely on the ground that she was being held accountable only


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for ‘her own actions as opposed to the broader conspiracy.’” Id. We explained that

this was “not an impermissible factor” but was “only one of many relevant factors.”

Id. We also noted that there was conflicting evidence as to the defendant’s role. Id.

We therefore vacated the denial of a role reduction and directed the court to examine

the defendant’s “role in the overall scheme in light of the relevant factors and the

totality of the circumstances.” Id.

      Similarly, the district court here denied Valdez a role reduction on the ground

that “[t]he guidelines are clear that when an individual is held accountable only for

their relevant conduct, then there is no minimal role, nor is there a minor role.” See

id. This statement is incorrect because the guidelines provide that a drug-courier

defendant like Valdez who is held accountable for only his own relevant conduct

may still receive a role reduction. See U.S.S.G. § 3B1.2, cmt. n.3(A), (C). And an

evaluation of the defendant’s role in the relevant conduct for which he is held

accountable at sentencing “is only one of many relevant factors.” Presendieu, 880

F.3d at 1250. Moreover, the district court otherwise indicated that it viewed Valdez

as less culpable in the criminal activity, stating that Valdez’s “role was less than the

others in the sense that [he] w[as] a person who was tasked with taking some of the

most risky activities” and referencing two coconspirators who were “placed higher

than [him] in the chain of command” and had “greater culpability.” Accordingly, as




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in Presendieu, we conclude that the court legally erred by denying a reduction based

on a single factor. See id.

      The government maintains that any error in denying a role reduction is

harmless because the district court’s decision to sentence Valdez well below the

guideline range expressly took into consideration his role in the offense. In the

government’s view, this reflects that the court would have imposed the same

sentence regardless of its resolution of the guideline issue.

      We decline the invitation to engage in what, on this record, would amount to

speculation. The district court did not state on the record that the guideline issue had

no effect on its choice of sentence. See United States v. Keene, 470 F.3d 1347, 1349

(11th Cir. 2006) (“Whether to decide and state on the record if the decision of a

guidelines issue matters to the ultimate sentence imposed is up to the district court

in each individual case.”). Nor are there strong indications in the record from which

we could infer with any certainty that the guideline issue did not matter to the

outcome. See Molina-Martinez v. United States, 578 U.S. ___, ___, 136 S. Ct. 1338,

1347 (2016) (“Where . . . the record is silent as to what the district court might have

done had it considered the correct Guidelines range, the court’s reliance on an

incorrect range in most instances will suffice to show an effect on the defendant’s

substantial rights.”).




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      In these circumstances, we think the wisest course of action is to vacate the

district court’s decision and remand for resentencing. On remand, the court should

base its role-reduction decision on “the relevant factors and the totality of

circumstances.” Presendieu, 880 F.3d at 1250. We express or imply no opinion on

whether Valdez is entitled to a role reduction on remand.

      VACATED AND REMANDED.




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