           Case: 12-15085   Date Filed: 05/31/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15085
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cr-20061-MGC-7



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ALBERTO PENA,

                                                         Defendant-Appellant.



                       ________________________

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

                              (May 31, 2013)

Before WILSON, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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      Alberto Peña appeals his 24-month sentence for possession with intent to

distribute less than 100 kilograms of marijuana, in violation of 21 U.S.C.

§ 841(a)(1). Peña pled guilty to possession with intent to distribute marijuana and

explicitly admitted in his factual proffer that “[t]he total weight of the marijuana

buds was over fifty kilograms,” there were an additional 31 plants, and he

“knowingly possessed with intent to distribute over fifty kilograms of marijuana.”

On appeal, Peña contends the district court erred by (1) relying on the wet, not dry,

weight of the marijuana for sentencing purposes, and (2) finding he was not

entitled to a minor role-reduction based on his argument that, like several

codefendants who received the reduction, Peña was only a harvester. After review,

we affirm Peña’s sentence, but remand for the limited purpose of correcting a

clerical error in the written judgment.

Weight of Marijuana

      We review a district court’s factual determination of the quantity of drugs

properly attributable to a defendant for clear error. United States v. Rodriguez, 398

F.3d 1291, 1296 (11th Cir. 2005). When a defendant objects to a factual finding

that the district court used in calculating his sentence, such as a drug amount, “the

government bears the burden of establishing the disputed fact by a preponderance

of the evidence.” Id. “The findings of fact of the sentencing court may be based

on evidence heard during trial, facts admitted by a defendant’s plea of guilty,


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undisputed statements in the presentence report, or evidence presented at the

sentencing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.

1989).

      The district court did not clearly err in its determination that Peña was

responsible for 50 to 60 kilograms of marijuana. Peña filed a factual proffer in

which he expressly admitted he knowingly possessed with intent to distribute over

50 kilograms of marijuana. See Wilson, 884 F.2d at 1356. Prior to taking Peña’s

plea, the district court asked him if he still wanted to enter a plea knowing its

determination as to the weight of marijuana. Peña elected to continue with his

plea knowing it included a stipulation to the weight of the marijuana, and allowed

the Government to provide his signed plea agreement and factual proffer to the

court. Thus, Peña admitted to possession of more than fifty kilograms of

marijuana and cannot now contest that amount.

Minor-Role Reduction

      We review the district court’s determination of whether a defendant qualifies

for a minor-role adjustment under the Guidelines for clear error. United States v.

De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant bears the

burden of proving by a preponderance of the evidence that his role was minor. Id.

at 939. Section 3B1.2(b) of the Sentencing Guidelines provides that, if the




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defendant was only a minor participant in the criminal activity, his total offense

level is decreased by two levels. U.S.S.G. § 3B1.2(b).

      The district court’s determination that Peña was not entitled to a minor-role

reduction was not clearly erroneous. Peña was held accountable only for the

marijuana found in the grow house that he admitted to possessing with an intent to

distribute; therefore, his role was not minor in relation to the relevant conduct for

which he was held accountable. See De Varon, 175 F.3d at 941 (“[T]he district

court must assess whether the defendant is a minor or minimal participant in

relation to the relevant conduct attributed to the defendant in calculating [his] base

offense level.”). Moreover, Peña did not establish that he was less culpable than

the other participants in the conspiracy. See id. at 944 (“[T]he district court must

determine that the defendant was less culpable than most other participants in [his]

relevant conduct.”). Although Peña claims he was only as culpable as the

codefendants who received a minor-role reduction for being harvesters, the record

supports the district court’s conclusion that Peña was engaged in more activity

benefitting the conspiracy than his codefendants.

Clerical Error

      “We may sua sponte raise the issue of clerical errors in the judgment and

remand with instructions that the district court correct the errors. See United States

v. Massey, 443 F.3d 814, 822 (11th Cir. 2006).” Here, the judgment correctly lists


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the offense of conviction as Count “2,” but incorrectly describes the offense as

conspiracy to possess with intent to distribute less than 100 kilograms of

marijuana, in violation of 21 U.S.C. § 846. Count Two of the indictment charged

Peña with possession with intent to distribute marijuana, in violation of 21 U.S.C.

§ 841(a)(1), and the plea agreement is clear that Peña intended to plead guilty to

Count Two. Accordingly, we remand for the limited purpose of correcting the

clerical error.

       AFFIRMED IN PART, REMANDED IN PART FOR CORRECTION

OF CLERICAL ERROR IN JUDGMENT.




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