           Case: 13-14113   Date Filed: 06/12/2014    Page: 1 of 10


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14113
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:12-cr-00558-VMC-AEP-3



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

versus

ALVARO VIERA-GOMEZ,

                                                Defendant - Appellant.

                       ________________________

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

                              (June 12, 2014)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
              Case: 13-14113    Date Filed: 06/12/2014    Page: 2 of 10


      Alvaro Viera-Gomez, a federal prisoner, appeals his 168-month sentence

after pleading guilty to conspiracy to possess and possession of a controlled

substance with intent to distribute five kilograms or more of cocaine while aboard

a vessel subject to the jurisdiction of the United States. Mr. Viera-Gomez argues

that the district court erred in finding that he was not entitled to a mitigating role

reduction under U.S.S.G. § 3B1.2 and that the district court erred in applying a

two-level enhancement under U.S.S.G. § 2D1.1 due to a co-defendant’s possession

of a firearm. Mr. Viera-Gomez also challenges the reasonableness of his sentence.

We affirm.

                                          I

      On December 6, 2012, two go-fast vessels, the Cayos Tour and the Cayos

Tour 2, each with four crew members aboard, departed from Honduras to receive

large quantities of cocaine from a Panamanian ship in international waters

(approximately 18 miles off the coast of Honduras). Mr. Viera-Gomez was a

member of the four-man crew on the Cayos Tour 2. Following the offload,

Marvin Losano-Armijo, a crew member of the Cayos Tour, realized that the

amount of cocaine transferred was short of the agreed-upon quantity and, after

making a phone call, retrieved a handgun and discharged several rounds at the

Panamanian ship.




                                          2
             Case: 13-14113     Date Filed: 06/12/2014     Page: 3 of 10


      The U.S. Coast Guard spotted the two go-fast vessels, observed the offload

and the gunfire, and dispatched two helicopters to the area. The two go-fast vessels

fled, jettisoning packages into the water. Coast Guard personnel eventually

boarded both go-fast vessels and arrested Mr. Viera-Gomez and the seven other

crew members. Upon search of the debris field left by the two boats, Coast Guard

personnel recovered 22 bales containing 550 kilograms of cocaine that had been

jettisoned from the Cayos Tour 2. The cocaine jettisoned from the Cayos Tour was

not recovered.

      Mr. Viera-Gomez pled guilty to two charges: conspiracy to possess, with

intent to distribute, five kilograms or more of cocaine while aboard a vessel subject

to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a),

70506(a), (b) and 21 U.S.C. § 960(b)(1)(B)(ii); and possession, with intent to

distribute, five kilograms or more of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a),

18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii).

      The    presentence     investigation   report      (PSI)   recommended     that

Mr. Viera-Gomez’s total offense level be established at 35 and his criminal history

score at I, yielding an advisory guidelines range of 168 to 210 months’

imprisonment. The guidelines calculation included a two-level increase under

U.S.S.G. § 2D1.1(b)(1) because one of Mr. Viera-Gomez’s co-defendants had


                                         3
             Case: 13-14113     Date Filed: 06/12/2014   Page: 4 of 10


possessed a firearm, see PSI at ¶ 23, and did not include any adjustment for

Mr. Viera-Gomez’s role in the conspiracy. Id. at ¶ 26. Mr. Viera-Gomez objected

to not receiving a two-level reduction for his minor role and to receiving the

two-level enhancement for possession of a firearm, but did not object to the

underlying facts in the PSI. He reiterated these arguments in his sentencing

memorandum as well as at his sentencing hearing. See D.E. 234 at 1-3; D.E. 289

at 30-36.

      After explaining that it had considered his “very difficult childhood,” as well

as the circumstances of the case and the damage caused by the illegal drug trade in

the United States, the district court sentenced Mr. Viera-Gomez within the

advisory guidelines range to a total of 168 months’ imprisonment and five years of

supervised release. See D.E. 289 at 47, 50-51.

                                         II

      We review a district court’s determination of a defendant’s role in the

offense for clear error. See United States v. Rodriguez De Varon, 175 F.3d 930,

937 (11th Cir. 1999) (en banc). We also review for clear error a district court’s

findings of fact under U.S.S.G. § 2D1.1(b)(1). See United States v. Gallo, 195

F.3d 1278, 1280 (11th Cir. 1999). We review the reasonableness of a district

court’s sentence, imposed after consulting the advisory guidelines and considering




                                         4
              Case: 13-14113     Date Filed: 06/12/2014    Page: 5 of 10


the factors set forth in 18 U.S.C. § 3553(a), for an abuse of discretion. See United

States v. Victor, 719 F.3d 1288, 1291 (11th Cir. 2013).

                                          III

      Mr. Viera-Gomez argues that he should have received either a two-level or

four-level reduction in the offense level for his role as a minor or minimal

participant. Specifically, he claims that his role was significantly less than the roles

of other participants because he did not know the type or quantity of drugs

involved, he handled only a very small amount of drugs, and his role was simply to

hold the rope that tethered the boats together while the drugs were being offloaded.

      As a general matter, § 3B1.2 “provides a range of adjustments for a

defendant who plays a part in committing the offense that makes him substantially

less culpable than the average participant.” U.S.S.G. § 3B1.2, n.3(A). When

determining whether a mitigating role adjustment is warranted, we look “first [to]

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 the relevant conduct.” De Varon, 175 F.3d at 940. “Only if the

defendant can establish that [he] played a relatively minor role in the conduct for

which [he] has already been held accountable—not a minor role in any larger

criminal conspiracy—should the district court grant a downward adjustment for

minor role in the offense.” Id. at 944.


                                           5
             Case: 13-14113     Date Filed: 06/12/2014   Page: 6 of 10


      Mr. Viera-Gomez has not established that the district court clearly erred in

declining to apply a mitigating role adjustment. He was one of only eight

crewmembers on the two go-fast vessels and was held accountable only for the

quantity of cocaine that was recovered from the boat on which he had been

traveling. Therefore, the conduct of others in any broader conspiracy has little

bearing on the assessment of Mr. Viera-Gomez’s role here. Additionally, we have

held that “the amount of drugs imported is a material consideration in assessing a

defendant’s role in [his] relevant conduct.” Id. at 943. Mr. Viera-Gomez was one

of four crewmembers on the Cayos Tour 2, from which 550 kilograms of cocaine

was recovered. Given the amount of the drugs and his actions in helping transport

them, it was not clear error for the district court to find that Mr. Viera-Gomez was

not a minor or minimal participant.

      Mr. Viera-Gomez also argues that the district court erred in applying a

two-level increase at sentencing under U.S.S.G. § 2D1.1(b)(1) for his

co-defendant’s possession of a firearm. Mr. Viera-Gomez argues that it was not

reasonably foreseeable to him that his co-defendant, Mr. Losano-Armijo, would

have a firearm because he was on a different go-fast vessel than

Mr. Losano-Armijo, he was not aware of the presence of the firearm, he had never

met Mr. Losano-Armijo, and he knew very little about the specifics of the

operation.


                                         6
              Case: 13-14113     Date Filed: 06/12/2014   Page: 7 of 10


      For a § 2D.1.1(b)(1) firearm enhancement to be applied based on a

co-conspirator’s possession, “the government must prove by a preponderance of

the evidence: (1) the possessor of the firearm was a co-conspirator, (2) the

possession was in furtherance of the conspiracy, (3) the defendant was a member

of the conspiracy at the time of the possession, and (4) the co-conspirator

possession was reasonably foreseeable by the defendant.” Gallo, 195 F.3d at 1284

(emphasis omitted). Recognizing the “frequent and overpowering connection

between the use of firearms and narcotics traffic,” we have found it is “reasonably

foreseeable that one co-conspirator would possess a firearm where the conspiracy

involved trafficking in lucrative and illegal drugs.” United States v. Pham, 463

F.3d 1239, 1246 (11th Cir. 2006). Indeed, we have “further upheld application of

the [§] 2D1.1(b)(1) enhancement even where defendants claim they were unaware

of the firearm possession.” Id. (citing United States v. Martinez, 924 F.2d 209, 210

(11th Cir. 1991)).

      Although Mr. Viera-Gomez objected to the two-level increase for presence

of a firearm, he did not object to any of the factual information set forth in the PSI,

and therefore admitted those facts for consideration during sentencing. See United

States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this circuit

that a failure to object to allegations of fact in a PSI admits those facts for

sentencing purposes.”). The facts in Mr. Viera-Gomez’s PSI demonstrated that,


                                          7
             Case: 13-14113     Date Filed: 06/12/2014   Page: 8 of 10


after the offloading of at least 550 kilograms of cocaine onto the two go-fast

vessels, Mr. Losano-Armijo fired shots at the Panamanian ship that had delivered

the cocaine. See PSI at ¶¶ 11, 13-14. It is clear, therefore, that Mr. Losano-Armijo

was a co-conspirator, that the firearm possession was in furtherance of the

conspiracy, and that Mr. Viera-Gomez was a member of the conspiracy at the time

of the incident. Additionally, the conspiracy involved a large amount of drugs,

making it reasonably foreseeable that a co-conspirator would possess a gun.

Accordingly, Mr. Viera-Gomez has not established that the district court clearly

erred in applying the two-level firearm enhancement.

      Finally, Mr. Viera-Gomez, in arguing that the district court erred by

declining to vary downward from the advisory guidelines, appears to challenge the

reasonableness of his sentence. See Appellant’s Br. at 10-12. The party who

challenges a sentence bears the burden of establishing that the sentence is

unreasonable in light of the record and the factors in 18 U.S.C. § 3553(a). See

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      Mr. Viera-Gomez has not met his burden of showing that the district court

abused its discretion in imposing his sentence. In reviewing a defendant’s sentence,

we must first ensure that the district court committed no significant procedural

error. See Gall v. United States, 552 U.S. 38, 51 (2007). Here, the district court

reviewed the PSI, heard the parties’ arguments, and considered the advisory


                                         8
             Case: 13-14113     Date Filed: 06/12/2014   Page: 9 of 10


guideline range and the § 3553(a) factors. And, as discussed above, the court did

not err in the application of the advisory guidelines. The district court therefore

imposed a procedurally reasonable sentence.

      Assuming that the district court’s sentencing decision is procedurally sound,

we then—taking into account the totality of the circumstances—consider the

substantive reasonableness of the sentence. See id. Mr. Viera-Gomez’s sentence

was also substantively reasonable. His convictions involved the trafficking of a

large amount of narcotics, crimes which were made more dangerous by the

presence of a firearm. Although Mr. Viera-Gomez’s childhood and the poverty in

which he lived could have weighed in favor of a lesser sentence, the sentence

imposed was not substantively unreasonable. The total sentence of 168 months’

imprisonment is at the low end of the guideline range, and therefore, is one we

expect to be reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005) (“when the district court imposes a sentence within the advisory Guidelines

range, we ordinarily will expect that choice to be a reasonable one”). Additionally,

Mr. Viera-Gomez’s total sentence is well below the statutory maximum penalty of

life. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (finding

reasonable a defendant’s sentence that was “well below” the maximum sentence

available under statute). Considering the § 3553(a) factors and the totality of the




                                         9
              Case: 13-14113     Date Filed: 06/12/2014   Page: 10 of 10


circumstances, Mr. Viera-Gomez’s total sentence was substantively reasonable,

and the district court did not abuse its discretion.

                                           IV

      Because the district court did not err in declining to apply a mitigating role

adjustment or in applying a two-level firearms enhancement, and because

Mr. Viera-Gomez’s total sentence was substantively reasonable, we affirm.

      AFFIRMED.




                                           10
