            Case: 18-10916    Date Filed: 10/26/2018    Page: 1 of 12


                                                       [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-10916
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 1:17-cr-00002-LMM-JKL-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ROGELIO BARAJAS,
a.k.a. Roger,

                                                            Defendant-Appellant.

                         ________________________

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

                              (October 26, 2018)

Before TJOFLAT, MARCUS and HULL, Circuit Judges.

PER CURIAM:

      Rogelio Barajas appeals his 204-month sentence, imposed for conspiring to

possess with the intent to distribute at least 50 grams of methamphetamine, in

violation of 21 U.S.C. §§ 841(b)(1)(A), 846. On appeal, Barajas argues that the
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district court: (1) clearly erred in imposing a two-level aggravating role

enhancement because he was a minor participant in the overall drug trafficking

conspiracy and only provided instructions to his co-conspirator at the behest of

another person; (2) clearly erred in declining to apply a mitigating role reduction;

and (3) imposed a substantively unreasonable sentence by failing to adequately

weigh his mitigating factors. After thorough review, we affirm.

      Because challenges to the application of the Sentencing Guidelines are

mixed questions of law and fact, we review the district court’s findings of fact for

clear error and its application of the Guidelines to the facts de novo. United States

v. Mandhai, 375 F.3d 1243, 1247 (11th Cir. 2004). We review the district court’s

determination of a defendant’s role for clear error. United States v. De Varon, 175

F.3d 930, 937 & n.3 (11th Cir. 1999) (en banc). Under clear error review, we will

not disturb the district court’s “choice between two permissible views of the

evidence,” as long as the basis for its decision was supported by the record and did

not involve an error of law. Id. at 945 (quotation omitted). We review the ultimate

sentence a district court imposes for “reasonableness,” which “merely asks whether

the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189

(11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).

      First, we are unpersuaded by Barajas’s claim that the district court clearly

erred in imposing a two-level aggravating role enhancement to his guideline range.


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A defendant receives a two-level enhancement if the district court determines that

he “was an organizer, leader, manager, supervisor in any criminal activity” and

was the organizer or leader of at least one other participant. U.S.S.G. § 3B1.1(c) &

comment. (n.2). In contrast, a defendant may receive a four-level enhancement for

being an “organizer or leader” of a criminal activity involving at least five

participants, and a three-level enhancement for being “a manager or supervisor”

over the same. Id. § 3B1.1(a), (b)

      The Guidelines suggest that the district court should consider seven factors

when determining whether the defendant is a leader or manager: (1) the

defendant’s exercise of decision making authority; (2) the nature of the defendant’s

participation in the offense; (3) recruitment of accomplices; (4) any “claimed right

to a larger share of the fruits of the crime”; (5) the defendant’s degree of

participation in the plan or organization of the offense; (6) the scope and nature of

the criminal activity; and (7) the defendant’s degree of control and authority he

exercised over others. U.S.S.G. § 3B1.1, comment. (n.4). We, also, have applied

these seven factors when analyzing whether a defendant was eligible for any

aggravating role enhancement under § 3B1.1. See United States v. Ramirez, 426

F.3d 1344, 1355 (11th Cir. 2005) (upholding a defendant’s two-level

enhancement). There is no requirement that each factor has to be present in a case

in order for the enhancement to apply, but the defendant is required to exercise


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some authority in the organization and exert “some degree of control, influence, or

leadership.” United States v. Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009)

(quotation omitted). Thus, the defendant’s “mere status of a middleman or a

distributor does not support enhancement” for being a manager or leader. United

States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006) (quotation omitted).

We’ve previously held that a defendant qualified for the enhancement where he

argued that he was an intermediary and no less culpable than any other defendant

in the conspiracy, but the record reflected that he exercised authority within the

organization when he recruited and instructed co-conspirators. Id.

      In making the determination of a defendant’s role, the district court is not

required to make any separate and specific factual findings. De Varon, 175 F.3d at

939. “So long as the district court’s decision is supported by the record and the

court clearly resolves any disputed factual issues, a simple statement of the district

court’s conclusion is sufficient.” Id. The court’s findings of facts may be based

on facts from a defendant’s guilty plea, undisputed facts in the presentence

investigation report (“PSI”), or evidence presented at the sentencing hearing. Id.

There is a strong presumption that the statements made during a plea colloquy are

true. United States v. Castro, 736 F.3d 1308, 1314 (11th Cir. 2013).

      Here, the district court did not clearly err when it applied the two-level

aggravating role enhancement to Barajas’s guideline range.             Based on the


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undisputed facts from the plea hearing and the PSI, Barajas had personally

recruited a driver, Ricky Cross, to transport drugs on behalf of a larger

organization and had called Cross on at least two occasions to transport drugs.

Castro, 736 F.3d at 1314. Barajas, undisputedly, was also Cross’s only point of

contact within the larger organization and was the person who relayed instructions

to Cross about where to pick up the drugs, where to transport them, and where to

meet the intended recipients.     Barajas’s active recruitment of Cross into the

conspiracy and his exercise of authority over Cross -- specifically, providing all of

the details to Cross regarding the transposition -- adequately supported the district

court’s two-level aggravating role enhancement, without requiring consideration of

any factual findings that Barajas disputes. See Ndiaye, 434 F.3d at 1304; De

Varon, 175 F.3d at 937. Even considering these two of the seven factors alone, the

record was sufficient to support the enhancement, since Barajas’s undisputed

offense conduct showed that he exercised “some degree of control, influence, or

leadership” over Cross.    Martinez, 584 F.3d at 1026; U.S.S.G. § 3B1.1(c) &

comment. (n.4); Ramirez, 426 F.3d at 1355.

      But in any event, the district court’s other factual findings in support of the

enhancement, adopted from the PSI, were not clearly erroneous. While Barajas

offered an alternative version of the facts than the government’s and PSI’s that

reduced some of his culpability in the overall conspiracy and diminished his


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authority over Cross, the court was permitted to choose between two permissible

interpretations of the evidence. See De Varon, 175 F.3d at 945. Thus, the court’s

determination that Barajas had significant authority over Cross’s actions and had

some understanding of scope of the money and drugs involved in the offense

further supported its role enhancement. See Martinez, 584 F.3d at 1026. And

since the court did not clearly err in adopting these facts, it also correctly

concluded that Barajas was more than a mere middleman -- the record established

that Barajas actively recruited Cross into the conspiracy and also attempted to

recruit another person, which goes beyond merely relaying instructions at the

behest of another. See Ndiaye, 434 F.3d at 1304. On this record, the district court

did not clearly err in applying the two-level enhancement to Barajas.

      We also find no merit to Baraja’s claim that the district court clearly erred in

declining to apply a mitigating role reduction. The district court can apply a 2-

level reduction in a defendant’s offense level if a defendant was a minor participant

in the offense, which is defined as any participant who is less culpable than most

other participants, “but whose role could not be described as minimal.” U.S.S.G. §

3B1.2 & comment. (n.5). The defendant has the burden of proving his mitigating

role in the offense by a preponderance of the evidence. De Varon, 175 F.3d at 939.

      In determining the defendant’s role, first, “the district court must measure

the defendant’s role against the relevant conduct for which []he has been held


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accountable.” Id. at 940, 945. “In other words, the district court must assess

whether the defendant is a minor or minimal participant in relation to the relevant

conduct attributed to the defendant in calculating h[is] base offense level.” Id. at

941. For example, if a defendant’s relevant conduct is coextensive with the larger

conspiracy but his role within that conspiracy was minor, the court may adjust the

defendant’s sentence due to his mitigating role in the large conspiracy.          Id.

“However, such an adjustment only makes sense analytically if the defendant can

establish that h[is] role was minor as compared to the relevant conduct attributed to

h[im].” Id. (emphasis omitted). Thus, a defendant is not entitled to a mitigating

role adjustment when he can point to a broader criminal scheme that he was a

minor participant in but was not held accountable for. Id. Second, the district

court must measure the defendant’s role against the other discernable participants

in the relevant conduct. Id. at 944-45.

      Additionally, the district court should consider these factors when

determining whether a defendant qualifies for a reduction: (1) the defendant’s

degree of understanding of the structure and scope of the criminal activity; (2) the

defendant’s degree of participation in the organization and planning of the criminal

activity; (3) the defendant’s degree of decision-making authority or influence over

the decision-making authority; (4) the defendant’s nature and extent of

participation in the criminal activity, including his actions and his responsibility


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and discretion in performing those actions; and (5) how much the defendant “stood

to benefit” from the activity. United States v. Presendieu, 880 F.3d 1228, 1249-50

(11th Cir. 2018) (quotation omitted); U.S.S.G. § 3B1.2, comment. (n.3(C)).

      Here, the district court did not clearly err in determining that Barajas did not

meet his burden of proof for a mitigating role reduction. See De Varon, 175 F.3d

at 939.   As we’ve explained, Barajas’s role as a manager and his actions in

recruiting Cross and providing him with instructions indicated that he was more

than a minor participant in the conspiracy. See id. at 941.

      Further, when considering the relevant offense conduct from the PSI, which

the court did not clearly err in adopting to resolve the factual disputes, Barajas was

not a minor or minimal participant in his own offense conduct. See id. at 940, 945.

Instead, Barajas actively participated in the offense conduct for which he was held

accountable, directing Cross to deliver a large quantity of methamphetamine to

specific locations in January and March 2016, initially recruiting Cross to act as a

driver for the conspiracy, consistently asking Cross to deliver and pick up new

shipments of drugs, telling Cross how much he would be paid, directing him to

meet specific people for pick up and drop off, and attempting to recruit a new

driver. And Barajas’s guideline range was not calculated as a part of a broader

conspiracy, but instead was calculated using only those specifics facts that applied

to him, namely, the two drug shipments from January and March 2016. Id. at 941.


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Thus, examining the offense conduct that only Barajas was held accountable for,

and not examining his minor role in the larger drug trafficking conspiracy, Barajas

was not a minor participant. Id. Nor was Barajas’s conduct significantly minor

compared to Cross’s -- a discernable participant -- since he instructed and recruited

Cross. See id. at 944-45.

      What’s more, Barajas: (1) had some understanding of the scope and

structure of the criminal enterprise, as indicated by his knowledge of Cross’s

payout and the shipment sizes; (2) helped organize and plan the shipments, even if

he had no control or decision-making authority over the specifics, by instructing

Cross where to go; (3) had more than a minor role in the conspiracy, as we’ve

reiterated, even if his actions were not wholly discretionary; and (4) received

monetary compensation to pay off a debt via his participation. See Presendieu, 880

F.3d at 1249-50; U.S.S.G. § 3B1.2, comment. (n.3(C)). In short, the district court

did not clearly err in denying Barajas a mitigating role reduction.

      We also are unconvinced by Baraja’s claim that his 204-month sentence was

substantively unreasonable. In reviewing the “‘substantive reasonableness of [a]

sentence imposed under an abuse-of-discretion standard,’” we consider the

“‘totality of the circumstances.’” Pugh, 515 F.3d at 1190 (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)).      The district court must impose a sentence

“sufficient, but not greater than necessary to comply with the purposes” listed in 18


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U.S.C. § 3553(a). The court must consider all of the § 3553(a) factors, but it may

give greater weight to some factors over others -- a decision that is within its sound

discretion. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).

However, a sentence may be substantively unreasonable when a court unjustifiably

relies on any single § 3553(a) factor, fails to consider pertinent § 3553(a) factors,

bases the sentence on impermissible factors, or selects the sentence arbitrarily.

Pugh, 515 F.3d at 1191-92. A sentence that suffers from one of these symptoms is

not per se unreasonable; rather, we must examine the totality of the circumstances

to determine the sentence’s reasonableness. Id. at 1192. “[W]e will not second

guess the weight (or lack thereof) that the [court] accorded to a given [§ 3553(a)]

factor . . . as long as the sentence ultimately imposed is reasonable in light of all

the circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th

Cir. 2010) (quotation, alteration and emphasis omitted).

      We will vacate a sentence only if we “are left with the definite and firm

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

the § 3553(a) factors by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case.” United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation omitted). Moreover, a

district court does not need to discuss each § 3553(a) factor. United States v.




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McNair, 605 F.3d 1152, 1231 (11th Cir. 2010).             Rather, it only needs to

acknowledge that it considered the factors and the defendant’s arguments. Id.

      Although we do not automatically presume a sentence falling within the

guideline range is reasonable, we ordinarily expect such a sentence to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence

imposed well below the statutory maximum penalty is another indicator of a

reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008).   The party challenging the sentence bears the burden to show it is

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

      Here, Barajas’s 204-month sentence was substantively reasonable.           The

court, in imposing its sentence, considered all of the relevant § 3553(a) factors, and

specifically noted that it was considering: the serious drug quantity involved in the

offense; Barajas’s managerial and limited role in the broader conspiracy; his

personal character, including his criminal history, devotion to family, and age; the

need to avoid unwarranted disparities with his other co-conspirators; the need for

the chosen sentence to reflect the seriousness of the offense; the need for

deterrence; the need to protect the public; the need to provide Barajas with

training, care, and treatment; the sentences available; the guideline range; and all

relevant polices. 18 U.S.C. § 3553(a). While the court did not explicitly mention

that it considered Barajas’s health condition in imposing its sentence, it did


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consider all of the other relevant facts regarding Barajas’s characteristics and

acknowledged that it considered his arguments and the § 3553(a) factors. See Irey,

612 F.3d at 1189; McNair, 605 F.3d at 1231.

      While Barajas argues that the court should have given more weight to his

mitigating factors, like his limited role, age, health, and family devotion, the court

had the discretion to weigh the appropriate factors and did not place undue reliance

on any one specific factor. Pugh, 515 F.3d at 1191-92; Rosales-Bruno, 789 F.3d at

1254. As for Barajas’s argument that the court should have given more weight to

the fact that his guideline range was calculated based on a drug quantity and

quality that he had no knowledge of, the sentencing court’s non-erroneous factual

findings indicated that Barajas had some knowledge of the nature of what was

being transported. See De Varon, 175 F.3d at 945. In any event, the court did

consider Barajas’s limited culpability in the overall drug trafficking conspiracy in

imposing its sentence, and was entitled to weigh that factor against all of the

others. See Rosales-Bruno, 789 F.3d at 1254.

      Finally, Barajas’s sentence was 31 months below his guideline range, an

indicator that his sentence was substantively reasonable. See Hunt, 526 F.3d at

746. It was also well below the statutory maximum penalty of life imprisonment,

another indicator of its reasonableness. See Gonzalez, 550 F.3d at 1324.

      AFFIRMED.


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