           Case: 13-12533   Date Filed: 08/07/2014   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12533
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:12-cr-20452-KMM-12



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

GERMAN SILVESTRO,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 7, 2014)



Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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       German Silvestro, having pleaded guilty to conspiracy to possess with intent

to distribute 1,000 or more marijuana plants, in violation of 21 U.S.C. § 846,

appeals his 144-month above-guideline sentence. Silvestro argues the district court

erred in denying a so-called “safety-valve” reduction under U.S.S.G. § 5C1.2,

applying three sentencing enhancements, and varying upward from his guideline

sentencing range by two years. Upon review, we reject Silvestro’s arguments and

affirm. 1

                                       I. DISCUSSION

A.     Denial of a Safety-Valve Reduction

       Under certain circumstances, a district court can sentence a defendant

without regard to a statutory minimum. See U.S.S.G. § 5C1.2(a)(1)-(5). In the

instant case, Silvestro was subject to a 10-year statutory minimum sentence under

21 U.S.C. § 846, and Silvestro argues the district court erred by not disregarding

this statutory minimum under § 5C1.2(a). However, Silvestro was not eligible for

safety-valve relief because he participated in a violent kidnapping and thereby

aided and abetted the use of violence. See id. § 5C1.2(a)(2) (allowing a court to

impose a sentence without regard to a statutory minimum only if, inter alia, the


       1
          When evaluating a sentence on appeal, “[w]e review the district court’s factual findings
for clear error and the court’s application of the sentencing guidelines de novo.” United States v.
McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006). We review the reasonableness of a sentence
for abuse of discretion, asking first whether the district court committed any significant
procedural error and then evaluating the sentence’s substantive reasonableness under the totality
of the circumstances. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).


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court finds that the defendant did not use violence in connection with the offense);

see also id. § 5C1.2 cmt. n.4 (“[T]he term ‘defendant,’ as used in subsection (a)(2),

limits the accountability of the defendant to his own conduct and conduct that he

aided or abetted . . . .”). Moreover, the kidnapping resulted in a death, which also

precluded the district court from disregarding the statutory minimum. See id.

§ 5C1.2(a)(3) (requiring that “the offense did not result in death . . . to any

person”). For these reasons, the district court did not err in denying safety-valve

relief to Silvestro.

B.     Application of Sentencing Enhancements

       Silvestro also challenges the district court’s application of three sentencing

enhancements. See id. § 2D1.1(b)(1) (two-level enhancement for possession of a

dangerous weapon), (b)(2) (two-level enhancement “[i]f the defendant used

violence”), (b)(12) (two-level enhancement if “the defendant maintained a

premises for the purpose of manufacturing or distributing a controlled substance”).

However, even with these enhancements, Silvestro’s base offense level resulted in

a guideline range that was below his 10-year statutory minimum under § 846, and

the statutory minimum therefore become his guideline range. See id. § 5G1.1(b).

Consequently, and in light of our conclusion that Silvestro was not entitled to

safety-valve relief, Silvestro’s sentence was not affected by any of the




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enhancements he challenges, and any error the district court made in their

application was therefore harmless under Fed. R. Crim. P. 52(a).

C.    Application of an Upward Variance

      Finally, Silvestro challenges the reasonableness of his sentence, drawing our

attention to the fact that it falls two years above his guideline range. However,

under the totality of the circumstances, we are not “left with a definite and firm

conviction that the district court committed a clear error of judgment in weighing

the [sentencing factors under 18 U.S.C.] § 3553(a)” and “arriv[ed] at a sentence

that lies outside the range of reasonable sentences dictated by the facts of th[is]

case.” See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).

Accordingly, we cannot vacate Silvestro’s sentence. Id.

      While we take note of the fact that Silvestro’s sentence was above his

guideline range, “[s]entences outside the guidelines are not presumed to be

unreasonable.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009). In

this case, the variance the district court imposed served to alleviate potential

sentencing disparities under § 3553(a)(6) with respect to Silvestro’s co-

conspirators, in comparison to whom the district court observed Silvestro received

only a “modest” increase. Moreover, the drug conspiracy to which Silvestro

pleaded guilty involved a kidnapping and a killing, bearing on the seriousness of

the offense under § 3553(a)(2)(B). The district court was not unreasonable in



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concluding that the statutory minimum of ten years did not adequately take into

account Silvestro’s uncharged participation in the kidnapping. Finally, although

Silvestro’s sentence was above his guideline range, it fell well below the statutory

maximum of life imprisonment, which is an indication of reasonableness. See

United States v. Valnor, 451 F.3d 744, 751-52 (11th Cir. 2006). Thus, under the

totality of the circumstances, the district court did not abuse its discretion by

imposing a substantively unreasonable sentence.

                                 II. CONCLUSION

      In light of the foregoing, we reject each of Silvestro’s contentions and

conclude that the district court committed no error or abuse of discretion

warranting reversal.

      AFFIRMED.




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