           Case: 15-10302   Date Filed: 10/06/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10302
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:13-cr-00191-SCJ-ECS-2




UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

JOSE VINCENTE RAMERIZ-RODRIGUEZ,
a.k.a. Luis Fernando,

                                                         Defendant-Appellant.
                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________
                           (October 6, 2015)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Jose Rameriz-Rodriguez appeals his total 70-month sentence imposed—at

the low end of the advisory Guidelines range of 70 to 87 months—after pleading

guilty to one count of conspiracy to commit Hobbs Act robbery, in violation of 18

U.S.C. § 1951(a) (Count 1), one count of conspiracy to transport stolen goods, in

violation of 18 U.S.C. § 371 (Count 2), and one count of Hobbs Act robbery, in

violation of 18 U.S.C. §§ 1951(a), 2 (Count 3). On appeal, Rameriz-Rodriguez

asserts that (1) the district court erred in denying Rameriz-Rodriguez a two-level

reduction for his minor participation in the offense under U.S.S.G. § 3B1.2(b), and

(2) his total sentence was procedurally and substantively unreasonable because the

district court improperly applied the 18 U.S.C. § 3553(a) factors to the facts and

circumstances relevant to his case. We address each argument in turn.

                             I. Minor-Role Reduction

      Rameriz-Rodriguez argues that he was entitled to a two-level reduction for

his role in the offense, averring he was only a “minor participant.” See U.S.S.G. §

3B1.2(b). A defendant qualifies as a “minor participant” if he is “less culpable

than most other participants” but had more than a “minimal” role in the offense.

See id. cmt. n.5.

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

does not qualify for a minor role adjustment. See United States v. Rodriguez De

Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The district court should

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“measure the defendant’s role” in the offense against: (1) “the relevant conduct for

which [the defendant] was held accountable at sentencing” and (2) “the other

participants, to the extent that they are discernable, in that relevant conduct.” See

id. at 940, 945.

      Here, in denying Rameriz-Rodriguez a mitigating role reduction, the district

court considered both De Varon prongs and reached a conclusion supported by the

record. See id. at 947 (“So long as the district court’s conclusion as to defendant’s

role in the offense is supported by the record, and the court has resolved any

disputed factual issues . . . , a simple statement of the district court’s conclusion is

sufficient.”). Rameriz-Rodriguez failed to bear his burden under either prong of

the De Varon analysis. See id. at 939 (“The proponent of the downward

adjustment . . . always bears the burden of proving a mitigating role in the offense

by a preponderance of the evidence.”).

      First, Rameriz-Rodriguez has not shown that he played a minor role as

compared to the conduct for which he was held accountable at sentencing. See id.

at 945. Even though Rameriz-Rodriguez’s co-conspirators—rather than Rameriz-

Rodriguez himself—restrained the victim and had a knife during the robbery,

Rameriz-Rodriguez initiated the chain of events that resulted in the restraint and

robbery with a knife present. In fact, Rameriz-Rodriguez participated in the

relevant conspiracy from beginning to end: he identified the potential victim,

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notified the purported leader of the conspiracy of that identification, served as a

lookout during the robbery, helped with the vehicle exchange after the robbery,

and profited from the robbery. See id. at 944 (“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.”).

      Second, Rameriz-Rodriguez also has not shown that he “was less culpable

than most other participants in [the] relevant conduct” because he initiated the

relevant offense by identifying the victim and contacting the purported leader of

the conspiracy, served as a lookout during the robbery, helped exchange vehicles

after the robbery, and profited from the robbery. See id. (“The fact that a

defendant’s role may be less than that of other participants engaged in the relevant

conduct may not be dispositive of role in the offense, since it is possible that none

are minor or minimal participants.”).

      Thus, Rameriz-Rodriguez has not shown he was entitled to a minor-role

reduction, and the district court did not clearly err in declining to reduce his

offense level on that basis.




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                   II. Procedural and Substantive Reasonableness

       Rameriz-Rodriguez next challenges the reasonableness of his within-

Guidelines sentence.

       We review the district court’s sentencing decision for abuse of discretion.

See Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The district

court must consider the sentencing factors outlined in 18 U.S.C. § 3553(a) and

“impose a sentence sufficient, but not greater than necessary, to comply with the

purposes set forth in [§ 3553(a)(2)].” See 18 U.S.C. § 3553(a); accord Gall, 552

U.S. at 50 n.6, 128 S. Ct. at 596 n.6; United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008) (per curiam).

       Here, Rameriz-Rodriguez’s sentence was both procedurally and

substantively sound. The district court correctly calculated the applicable

Guidelines range, “treat[ed] the Guidelines as” advisory, “consider[ed] the §

3553(a) factors,” did not select Rameriz-Rodriguez’s sentence “based on clearly

erroneous facts,” and “adequately explain[ed]” the sentence. See Gall, 552 U.S. at

51, 128 S. Ct. at 597; Gonzalez, 550 F.3d at 1324 (“An acknowledgment the

district court has considered the defendant’s arguments and the § 3553(a) factors

will suffice.”).

       The district court fully considered the § 3553(a) factors, including Rameriz-

Rodriguez’s family and criminal history, the need for deterrence, the nature of the

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violent offense, and Rameriz-Rodriguez’s role in the offense. See 18 U.S.C. §

3553(a)(2); Gonzalez, 550 F.3d at 1324 (“We will defer to the district court’s

judgment regarding the weight given to the § 3553(a) factors unless the district

court has made a clear error of judgment and has imposed a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.”

(internal quotation marks omitted)). The district court also considered Rameriz-

Rodriguez’s arguments regarding sentencing disparities and the conditions of his

pretrial confinement. See Gall, 552 U.S. at 53–56, 128 S. Ct. at 599–600 (“Since

the [d]istrict [j]udge correctly calculated and carefully reviewed the Guidelines

range, he necessarily gave significant weight and consideration to the need to avoid

unwarranted disparities.”); Gonzalez, 550 F.3d at 1324 (“The review for

substantive unreasonableness involves examining the totality of the circumstances .

. . .”).

           Ultimately, the district court’s sentence was not “outside the range of

reasonable sentences dictated by the facts of the case.” See Gonzalez, 550 F.3d at

1324 (internal quotation marks omitted) (“We ordinarily expect a sentence within

the Guidelines range to be reasonable, and the appellant has the burden of

establishing the sentence is unreasonable in light of the record and the § 3553(a)

factors.”). Further, the total sentence imposed was “well below” the statutory

maximum, which is also a factor indicating reasonableness. See id.; 18 U.S.C. §

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1951(a). Accordingly, the district court did not abuse its substantial discretion in

imposing this within-Guidelines sentence.

                                  III. Conclusion

      Upon careful review of the record and consideration of the parties’ briefs,

we conclude the district court neither clearly erred in declining to apply a minor-

role reduction, nor abused its discretion in imposing a total 70-month sentence.

AFFIRMED.




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