            Case: 16-17714    Date Filed: 11/28/2017   Page: 1 of 8


                                                       [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17714
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:15-cr-00238-VMC-AEP-3



UNITED STATES OF AMERICA,

                                                       Plaintiff - Appellee,

                                    versus

MARCELIANO BANGUERA COLORADO,

                                                       Defendant - Appellant.

                       ________________________

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

                             (November 28, 2017)

Before HULL, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Marceliano Banguera Colorado appeals his 108-month sentence, which the

district court imposed after he pled guilty to one count of 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. Specifically, he argues that the

district court erred in denying him a minor role reduction under U.S.S.G.

§ 3B1.2(b). After careful review, we vacate and remand for resentencing.

                                          I.

      After Colorado pled guilty, the probation office prepared a presentence

investigation report (“PSI”). According to the PSI, Colorado and two co-

defendants, Luis Alberto Jacome Gobea and Carlos Alberto Marquez Tenorio,

used a go-fast vessel to transport 598 kilograms of cocaine from Colombia to

Guatemala. A United States Navy helicopter observed the vessel traveling through

international waters and three men onboard discarding cargo into the ocean. The

United States Coast Guard seized the vessel, boarded it, and recovered barrels of

cocaine that had been thrown overboard. Tenorio identified himself as captain of

the vessel.

      Colorado’s PSI calculated a base offense level of 38 under U.S.S.G.

§ 2D1.1(c)(1) because the offense involved more than 450 kilograms of cocaine.

With a number of guidelines reductions not at issue here, Colorado’s total offense

level was 33. He had no criminal history, so the PSI reported his criminal history


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category as I. Colorado’s resulting guidelines range was 135 to 168 months’

imprisonment (with a 10-year statutory minimum sentence under 21 U.S.C.

§ 960(b)(1)(B)(ii)).

       Colorado objected to the PSI’s failure to include a minor role reduction of

his offense level. Colorado asserted that he was merely a deckhand involved in

one shipment of cocaine for a larger criminal conspiracy and therefore

considerably less culpable than his co-conspirators. He asserted that his co-

defendants Tenorio and Gobea were, respectively, captain and load guard of the

vessel, and that he played the most minor role of the three. He argued that he

should have been eligible for a six-level reduction in his offense level under

U.S.S.G. §§ 3B1.2(b) and 2D1.1(a)(5).1

       Colorado renewed his objection at sentencing. Although Gobea had claimed

at sentencing that he was the vessel’s deckhand, Colorado reiterated his

understanding that Gobea was the vessel’s load guard, a more significant role than

deckhand. Colorado asserted that as deckhand he lacked knowledge of the overall

criminal enterprise, was uninvolved in any planning of the scheme, exercised no

decisionmaking authority over the operation, and had no proprietary interest in the

cocaine; he further claimed that he had never before participated in a drug
       1
          A district court may reduce a defendant’s base offense level by two levels if it finds that
the defendant was a “minor participant” in the criminal activity. U.S.S.G. § 3B1.2(b). If the
court grants such a reduction in a drug case with a base offense level of 38 (like Colorado’s
case), the defendant’s base offense level is decreased by a further four levels, for a total of six
levels. Id. § 2D1.1(a)(5).
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trafficking operation. And, he argued, the fact that he played an essential role in

the criminal activity was not determinative of whether a minor role reduction

should apply.

       The district court overruled Colorado’s objection and declined to accept a

minor role reduction. The court reasoned:

       I don’t think I’ve given a minor role provision on these cases, and I’ll
       tell you why . . . . I’ve had probably about a hundred of these cases.
       It takes all of these individuals working together. And I understand
       that in the scheme of things, in your opinion, they may be small
       players because you have got somebody really important down in . . .
       Colombia . . . making a whole lot of money, and these people are paid
       a pittance compared to the millions and millions of dollars.

       I certainly understand your argument and where you are coming from,
       but it still takes all of them to make it happen. So I don’t provide the
       minor role reduction because I don’t think that it’s appropriate . . . .

Doc. 99 at 9-10.2 The court nonetheless applied a downward departure under

U.S.S.G. § 5K1.1 for substantial assistance to the government, reducing

Colorado’s total offense level to 31, and concluded that the statutory mandatory

minimum did not apply because of that reduction. The district court’s calculation

reduced Colorado’s guidelines range to 108 to 135 months’ imprisonment. The

district court sentenced Colorado to 108 months.


       2
          “Doc.” refers to the numbered entry on the district court’s docket in this case. The
district court made this statement when overruling an identical objection to the lack of a minor
role reduction by Colorado’s co-defendant Gobea. When it addressed Colorado’s objection, the
court stated: “I feel the same way as I did for the other gentlemen. I think it takes all these
people working together to make this happen, so I will not give the minor role adjustment.” Doc.
99 at 14.
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      This is Colorado’s appeal.

                                           II.

      At sentencing, the defendant bears the burden of proving by a preponderance

of the evidence his entitlement to a role reduction. United States v. Rodriguez De

Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc). 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), cert. denied, 137 S. Ct. 1435 (2017). Clear error

requires “a definite and firm conviction that a mistake has been committed.” Id.

(internal quotation marks omitted). We will not find clear error “[s]o long as the

basis of the trial court’s decision is supported by the record and does not involve a

misapplication of a rule of law.” Rodriguez De Varon, 175 F.3d at 945.

                                           III.

      Colorado challenges the district court’s refusal to grant a six-level minor role

reduction, arguing that he satisfied his burden to prove his eligibility and that the

district court failed to find any facts relevant to his case that would permit it to

deny the reduction. As to this second argument, Colorado asserts that the district

court’s reason for denying the minor role reduction was, impermissibly, based on a

single factor and unrelated to the circumstances of his case. Because we agree

with this second point, and the consequences for Colorado’s guidelines range could




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be significant, “we think the wisest course of action is to vacate the district court’s

decision and remand for resentencing.” Cruickshank, 837 F.3d at 1195.

       When evaluating a defendant’s role in an offense, the district court must

consider the totality of the circumstances, U.S.S.G. § 3B1.2, comment n.3(C),

assessing “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 participants in [his] relevant conduct.” Rodriguez De Varon, 175 F.3d at

940.3 The district court is under no obligation to make “specific subsidiary

findings,” but it must “clearly resolve[ ] any disputed factual issues” and make “the

ultimate determination of the defendant’s role in the offense.” Id. at 939-40

(emphasis omitted). The commentary to U.S.S.G. § 3B1.2 confirms the fact-

intensive nature of this inquiry. The commentary provides a non-exhaustive list of

factors for the district court to consider, including, among other things, “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 decision-making

authority,” “the nature and extent of the defendant’s participation in the


       3
          Colorado argued in the district court and maintains on appeal that his role should be
compared with that of other unnamed co-conspirators. We have explained, however, that the
roles of other parties to the offense are relevant “only to the extent that [the other parties] are
identifiable or discernable from the evidence . . . . [excluding] participants in any larger criminal
conspiracy.” Rodriguez De Varon, 175 F.3d at 944. Because the unnamed co-conspirators are
not identifiable or discernible, we reject Colorado’s argument.
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commission of the criminal activity,” and “the degree to which the defendant stood

to benefit from the criminal activity.” U.S.S.G. § 3B1.2, cmt. n.3(C). “The fact

that a defendant performs an essential or indispensable role in the criminal activity

is not determinative.” Id.

      We have cautioned district courts against applying any per se rules for a

minor role reduction. Cruikshank, 837 F.3d at 1194. In Cruikshank, we

disapproved of the district court’s suggestion that the drug quantity involved in the

offense was so large “that no participant in the scheme could ever have been

eligible for a minor-role reduction.” Id. We held that it was “legal error for the

district court to say that this is the only factor to be considered in a case like this

one.” Id. at 1195. Because the stakes were high for the defendant in Cruikshank—

he, like Colorado, had sought a six-level reduction in his offense level—we

remanded for resentencing, instructing the district court on remand to “perform an

inquiry based on the totality of circumstances, taking into account the variety of

factors laid out in De Varon” and the guidelines commentary. Id.

      Cruikshank’s logic applies here. When it overruled Colorado’s objection to

the lack of a minor role reduction, the district court suggested that it treated all

conspiracy-to-traffic-drugs cases uniformly because in all such cases, “[i]t takes all

of these individuals working together.” Doc. 99 at 9-10. The court stated that it

“d[oes]n’t provide the minor role reduction” in any of “these cases,” of which the


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court had seen “about a hundred.” Id. The district court gave no other reason for

declining to give a minor role reduction. Thus, like in Cruikshank, the district

court apparently hinged its rejection of a minor role reduction on a single factor

rather than a consideration of the totality of the circumstances. See Cruikshank,

837 F.3d at 1194-95. This is impermissible. See id.

      Moreover, the single factor the district court relied upon—that co-

conspirators in a drug trafficking enterprise are all essential to the execution of the

offense—cannot, under the guidelines, be determinative of whether to give a minor

role reduction. See U.S.S.G. § 3B1.2, cmt. n.3(C) (“The fact that a defendant

performs an essential or indispensable role in the criminal activity is not

determinative.”). This misapplication of law, especially when paired with the

district court’s failure to consider the totality of the circumstances, constitutes clear

error. See Rodriguez De Varon, 175 F.3d at 945.

      For these reasons, as in Cruikshank, we think the wisest course of action is

to vacate Colorado’s sentence and remand for resentencing. On remand, the

district court should perform an inquiry based on the totality of the circumstances,

taking into account the factors set forth in the commentary to U.S.S.G. § 3B1.2.

      VACATED AND REMANDED.




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