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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11773
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:17-cr-00285-MHC-JSA-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ENRIQUE MONTANO-GARCIA,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (February 5, 2019)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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        Enrique Montano-Garcia appeals his 70-month sentence for conspiracy to

possess with intent to distribute 100 grams or more of heroin and possession with

intent to distribute 100 grams or more heroin. After careful review, we vacate his

sentence and remand for further proceedings consistent with this opinion.

                                         I.

        Montano-Garcia pled to conspiracy to possess and possession with intent to

distribute more than 100 grams of heroin. The evidence showed Montano-Garcia

couriered about $47,000 cash in drug proceeds to another person and stayed for

about ten days in an apartment where law enforcement found 11 kilograms of

heroin. The presentence investigation report (PSR) calculated a guideline range of

135 to 168 months based on an offense level of 33 and a criminal history category

of I.

        Montano-Garcia objected to the offense level calculation. He sought a

three-point offense level reduction under U.S.S.G. § 3B1.2 for his role in the

offense, which he characterized as between minor and minimal. He maintains he

acted as a one-time courier of money only. He also objected to the amount of

heroin attributed to him. Law enforcement discovered 11 kilograms of heroin

during their search of the apartment, but only two kilograms were in plain view.

The PSR attributed all 11 kilograms to Montano-Garcia.




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      The district court sustained in part and denied in part Montano-Garcia’s

objections. On the government’s concession, the district court found Montano-

Garcia played a minor role in the conspiracy and so reduced the offense level by

two points pursuant to U.S.S.G. § 3B1.2(b). But it overruled Montano-Garcia’s

drug-quantity objection. With the reduction, the district court calculated Montano-

Garcia’s guideline range as 78 to 97 months. The district court imposed a below-

guideline sentence of 70 months.

      Montano-Garcia timely appealed. He contends the district court erred by

attributing all 11 kilograms of heroin to him and by denying his request for a three-

point reduction under U.S.S.G. § 3B1.2. He also challenges his sentence’s

substantive reasonableness.

                                            II.

      We review a district court’s determination of the drug quantity attributable

to a defendant for clear error. United States v. Almedina, 686 F.3d 1312, 1315

(11th Cir. 2012). An error is clear when we are “left with a definite and firm

conviction that a mistake has been committed.” Id. (quotation omitted). We are

left with such a conviction in this case.

      Under U.S.S.G. § 1B1.3, conspirators are accountable for “all acts and

omissions of others that were within the scope of the jointly undertaken criminal

activity,” that were taken “in furtherance of that criminal activity,” and that were


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“reasonably foreseeable in connection with that criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(B). We have said this provision “requires the district court to

determine first ‘the scope of the criminal activity the particular defendant agreed to

jointly undertake’ in order to determine the relevant conduct for which a defendant

may be held responsible.” United States v. Presendieu, 880 F.3d 1228, 1245 (11th

Cir. 2018) (quoting U.S.S.G. § 1B1.3 cmt. n.2 (2014)); see also U.S.S.G. § 1B1.3

cmt. n.3 (2016). This is so because “the scope of the ‘jointly undertaken criminal

activity’ is not necessarily the same as the scope of the entire conspiracy, and

hence relevant conduct is not necessarily the same for every participant.” U.S.S.G.

§ 1B1.3 cmt. n.3. The Guidelines make clear that “[a]cts of others that were not

within the scope of the defendant’s agreement, even if those acts were known or

reasonably foreseeable to the defendant, are not relevant conduct.” Id. In keeping

with this principle, this court has observed that when a defendant knows about a

larger operation but agrees to play only small role, knowledge alone “does not

amount to acquiescence in the acts of the criminal enterprise as a whole.” United

States v. Hunter, 323 F.3d 1314, 1320 (11th Cir. 2003). “Once a district court

makes individualized findings concerning the scope of criminal activity undertaken

by a particular participant, it then can determine foreseeability.” Presendieu, 880

F.3d at 1245 (quotation omitted).

      The Guidelines provide an illustration of this principle:


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      Defendant O knows about her boyfriend’s ongoing drug-trafficking
      activity, but agrees to participate on only one occasion by making a
      delivery for him at his request when he was ill. Defendant O is
      accountable under subsection (a)(1)(A) for the drug quantity involved
      on that one occasion. Defendant O is not accountable for the other drug
      sales made by her boyfriend because those sales were not within the
      scope of her jointly undertaken criminal activity (i.e., the one delivery).

      U.S.S.G. § 1B1.3, cmt. n.4(C)(v)).

      The district court found that Montano-Garcia “was staying in the living

room . . . of this stash house for a 10-day period” and “participated in a conspiracy

in which he delivered a considerable amount of money which he knew was money

dealing with the distribution of heroin.” Continuing, it found that the fact

Montano-Garcia was only in the apartment for 10 days did not mean Montano-

Garcia could not foresee the amount of heroin involved. It found that the heroin

was discovered in places “that were accessible [to Montano-Garcia] when he

stayed during the 10-day period in the” apartment. Finally, it found that Montano-

Garcia’s participation in the conspiracy, which included couriering $47,000 cash to

another individual, “certainly makes it foreseeable that he knew there could have

been other heroin in the same place that he was staying.” This foreseeability

finding is not clearly erroneous.

      However, the district court did not make a finding on the scope of Montano-

Garcia’s participation in the conspiracy. It is not enough that Montano-Garcia

could reasonably have foreseen that more heroin was involved. To hold Montano-


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Garcia accountable for the entire 11 kilograms, the district court had to find that all

11 kilograms were part of the criminal activity Montano-Garcia agreed to

undertake. We are particularly convinced of clear error because the district court

found in its analysis of the 3553(a) factors that “the evidence doesn’t show that

[Montano-Garcia] was actively involved with respect to the other heroin.” Instead,

the court found that Montano-Garcia “was a drug courier, pure and simple, in this

case.”

         On remand, the district court should determine the scope of Montano-

Garcia’s agreed-upon criminal activity before determining what drug quantity was

reasonably foreseeable.

                                           III.

         We review for clear error a district court’s determination of the defendant’s

role in the offense, providing the district court with discretion in making this

fact-based determination. United States v. De Varon, 175 F.3d 930, 946 (11th Cir.

1999) (en banc). Here again we find clear error.

         U.S.S.G. § 3B1.2 provides for a four-level reduction if a defendant was a

minimal participant in the criminal activity, a two-level reduction if a defendant

was a minor participant, and a three-level reduction if a defendant’s role falls

between a minimal and minor role. United States v. Wenxia Man, 891 F.3d 1253,

1274 (11th Cir. 2018); U.S.S.G. § 3B1.2. A “minimal participant” means a


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defendant who is “plainly among the least culpable of those involved in the

conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. A “minor participant” means a

defendant who is “less culpable than most other participants in the criminal

activity, but whose role could not be described as minimal.” Id. § 3B1.2 cmt. n.5.

The defendant bears the burden of proving, by a preponderance of the evidence,

that he is entitled to a mitigating role reduction. Wenxia Man, 891 F.3d at 1274.

      In determining whether a mitigating role adjustment applies, we have said

the district court should first consider “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 participants in his relevant conduct.” Id. “The district

court must consider all of the facts probative of [his] role in his relevant conduct

and evaluate the totality of the circumstances and . . . the facts of each particular

case.” Id. (quotation marks and citations omitted); see also U.S.S.G. § 3B1.2 cmt.

n.3(C). “To assist courts with this task, the Guidelines provide a non-exhaustive

list of factors, such as the degree to which the defendant understood the scope and

structure of the criminal activity, the degree to which the defendant participated in

planning or organizing the criminal activity, the degree to which the defendant

exercised or influenced the exercise of decision-making authority, the nature and

extent of the defendant’s participation, and the degree to which the defendant stood

to benefit.” Wenxia Man, 891 F.3d at 1274 (quotation marks omitted and


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alterations adopted); U.S.S.G. § 3B1.2 cmt. n.3(C). In Presendieu, this court

recently held that making the role reduction decision based solely on one factor

constitutes legal error. 880 F.3d at 1250.

         The district court found that Montano-Garcia’s role in the conspiracy was

less than that of his co-conspirator. But it ruled Montano-Garcia was not entitled

to a three-point reduction because “he pled guilty to conspiracy to distribute heroin

in this case, which means he was aware of the enterprise.” This appears to be the

sole factor the district court considered, and so we must vacate based on our

decision in Presendieu, 880 F.3d at 1250. On remand, the district court should

evaluate the totality of the circumstances of Montano-Garcia’s involvement in the

conspiracy. Again, we note the district court found both that “the evidence doesn’t

show that [Montano-Garcia] was actively involved with respect to the other

heroin” and that Montano-Garcia “was a drug courier, pure and simple, in this

case.”

         Because we vacate the sentence on these two grounds, we do not reach the

issue of whether Montano-Garcia’s sentence was substantively unreasonable.

         VACATED AND REMANDED.




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