              Case: 12-12657    Date Filed: 01/11/2013   Page: 1 of 6

                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-12657
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:11-cr-14054-JEM-2


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,
                                      versus

SAIL EMILIANO MARTINEZ,
a.k.a. Saul Castro Martinez,

                                                             Defendant-Appellant.

                          ________________________

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

                                (January 11, 2013)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

      Sail Martinez appeals his total sentence of 84 months’ imprisonment,

imposed after he pled guilty to conspiracy to commit robbery, in violation of 18
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U.S.C. § 1951(a) (Count 1), and carrying and possessing a firearm in furtherance

of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). For the

reasons set forth below, we affirm Martinez’s sentences.

                                           I.

      Martinez’s presentence investigation report (“PSI”) provided that Martinez

and his co-conspirator, Geovani Sales, solicited a confidential informant to rob a

money courier, and Sales and Martinez told the informant that they would obtain a

firearm for the informant’s use in the robbery. The confidential informant

introduced Sales, Martinez, and their co-conspirator, Jose Rosales, to an

undercover officer, and Sales and Martinez solicited the officer to commit the

robbery. Martinez told the officer to smash the driver’s side window of the

courier’s vehicle in order to put the gun to the courier’s head. Martinez further

told the officer that the courier would not resist. In a post-arrest statement,

Martinez admitted to participating in the planning of the robbery.

      The PSI stated that, as to Count 1, Martinez had a base offense level of 20,

pursuant to U.S.S.G. § 2B3.1(a), as his offense involved robbery. A

mitigating-role adjustment was not recommended, pursuant to U.S.S.G. § 3B1.2.

As to Count 3, a five-year consecutive term of imprisonment had to follow the

term of imprisonment imposed as to Count 1.




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      At sentencing, Martinez objected that he should receive a two-level

minor-role reduction, pursuant to § 3B1.2(b). Although Martinez was uncertain

and could not prove it, the “victims” in the case may have been part of the

underlying conspiracy, which was relevant to whether Martinez deserved a

minor-role reduction. Martinez noted that a statement in the PSI provided that the

couriers would not resist when a gun was pointed at them. Rosales had stated in

his proffer that Sales’s brother may have warned the victims of Sales’s intention to

rob the victims. The court rejected as speculation Martinez’s assertion concerning

the victims being involved in the conspiracy and determined that the minor-role

adjustment did not apply. The court imposed a total sentence of 84 months’

imprisonment.

                                         II.

      On appeal, Martinez argues that the district court clearly erred in not

reducing his base offense level by two levels for his minor role in the offense,

pursuant to § 3B1.2(b), because the PSI indicated that the robbery was Sales’s

idea, Sales placed the firearm in the vehicle, Martinez did not plan the robbery, and

Martinez was only to receive $5,000 for his role in the conspiracy. Further, the

victims of the offense may have been part of the underlying conspiracy.

      We review a district court’s denial of a role reduction for clear error. United

States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). The defendant


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bears the burden of establishing his minor role in the offense by a preponderance

of the evidence. Id. Furthermore, in making the ultimate determination of the

defendant’s role in the offense, the court does not have to make any specific

subsidiary factual findings. United States v. De Varon, 175 F.3d 930, 939 (11th

Cir. 1999) (en banc). Thus, so long as the court’s decision is supported by the

record and the court resolves any disputed factual issues, a simple statement of the

court’s conclusion is sufficient. Id.

      The Sentencing Guidelines provide for a two-level decrease to a base

offense level if a defendant was a minor participant in the criminal activity.

U.S.S.G § 3B1.2(b). A minor participant is one “who is less culpable than most

other participants, but whose role could not be described as minimal.” Id.,

comment. (n.5). In determining whether § 3B1.2(b) applies, the district court must

compare the defendant’s role in the offense with the relevant conduct for which he

has been held accountable with respect to calculating his base offense level.

Bernal-Benitez, 594 F.3d at 1320. The court may also compare the defendant’s

conduct with that of the other participants in the offense. Id. The fact that a

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

conduct is not necessarily dispositive, as it is possible that none are minor

participants. De Varon, 175 F.3d at 944.




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       In this case, the undisputed statements in the PSI provide that Martinez was

involved in the planning of the robbery and in obtaining the firearm to be used in

the robbery. See United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006)

(providing that unobjected-to facts in the PSI are deemed admitted). Martinez was

only held accountable for the robbery with respect to his base offense level

calculation, and thus, the relevant conduct attributed to him in calculating his

guideline range was identical to his actual conduct. See Bernal-Benitez, 594 F.3d

at 1320. Even if Martinez was less culpable than Sales, that alone does not

demonstrate that Martinez was a minor participant. See De Varon, 175 F.3d at

944.

       Finally, the district court did not clearly err in rejecting Martinez’s argument

that the money courier may have been involved in the underlying conspiracy.

Neither Rosales’s proffer that Sales’s brother may have warned the victims of

Sales’s intent to rob them, nor Martinez’s statement to the undercover officer that

the victims would not resist, showed that the victims were part of the conspiracy.

Thus, Martinez’s theory that the victims were involved in the robbery was mere

speculation. Even if the victims were involved in the conspiracy, Martinez would

not be entitled to a minor-role reduction due to his involvement in planning the

robbery and obtaining a firearm. Based on the above, the district court did not

clearly err in denying Martinez’s request for a minor-role reduction.


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For the foregoing reasons, we affirm Martinez’s sentences.

AFFIRMED.




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