                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-15538                ELEVENTH CIRCUIT
                                                              JULY 2, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 07-20081-CR-ASG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DARLI VELAZQUEZ-ARMAS,

                                                          Defendant-Appellant.


                        ________________________

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

                                (July 2, 2009)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Darli Velazquez-Armas (“Velazquez”), having been caught conspiring to
import and possess with intent to distribute cocaine, appeals the current prison

sentences of 360 months each that were imposed by the district court after he pled

guilty to violating 21 U.S.C. §§ 963, 952(a), and 856. Velazquez argues that the

district court erred as follows: (1) when it refused to consider his safety-valve

statement in support of the factual and legal objections he made to the presentence

investigation report (“PSI”) and at sentencing; (2) when it applied a two-level

enhancement for reckless endangerment during flight from law officers under

U.S.S.G. § 3C1.2; (3) in denying him a two-level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1(a); (4) in applying a three-level manager-

supervisor enhancement, under U.S.S.G. § 3B1.1(b); (5) in refusing to find that he

satisfied all of the requirements for safety-valve relief under U.S.S.G. § 5C1.2 and

18 U.S.C. § 3553(f); (6) when it applied the six-level victim related enhancement

under U.S.S.G. § 3A1.2(c)(1); and (7) in imposing sentences that are substantively

unreasonable. We consider these arguments in their numerical order.

1) Admissibility of Safety Valve Statement

      Velazquez presents this objection for the first time on appeal. When an

objection is raised for the first time on appeal, we review it for plain error. United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error

review, the appellate court may only correct errors if the defendant establishes: (1)



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error, (2) that is plain, and (3) that affects substantial rights. United States v.

Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If all three conditions are met, we

may exercise our discretion to recognize the error, if it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (citation and

quotation omitted). An error affects a party’s substantial rights if it had a

substantial influence on the outcome of the case. Id.

       The district court did not make a ruling concerning the sufficiency of

Velazquez’s safety-valve statement, nor did it deny him an opportunity to refute

the PSI. Velazquez has failed to demonstrate that the court erred, much less

plainly erred, when it refused to consider his safety-valve statement.

2) Reckless Endangerment During Flight

       Section C1.2 of the Sentencing Guidelines imposes a two-level increase “[i]f

the defendant recklessly created a substantial risk of death or serious bodily injury

to another person in the course of fleeing from a law enforcement officer.” The

Guidelines define recklessness, under § 3C1.2, as “a situation in which the

defendant was aware of the risk created by his conduct and the risk was of such a

nature and degree that to disregard that risk constituted a gross deviation from the

standard of care that a reasonable person would exercise in such a situation.”

U.S.S.G. §§ 2A1.5, comment 1, 3C1.2, comment 2. “Driving a car at a high rate of



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speed in an area where people are likely to be found constitutes reckless disregard

for others’ safety.” United States v. Washington, 434 F.3d 1265, 1268 (11th Cir.

2006).

         The district court found that Velazquez put “any number of individuals” at

risk when he led law enforcement officers on high speed chases through residential

areas in the United States and Spain. The court’s findings were supported by

Agent Boho and Officer Gonzalez’s testimonies. The court did not err when it

applied the § 3C1.2 reckless endangerment enhancement to Velazquez.

3) Acceptance of Responsibility

         We review “the district court's determination of acceptance of responsibility

only for clear error. A district court's determination that a defendant is not entitled

to acceptance of responsibility will not be set aside unless the facts in the record

clearly establish that a defendant has accepted personal responsibility.” United

States v. Singh, 291 F.3d 756, 764 (11th Cir. 2002) (internal citation omitted).

         The Guidelines provide for a two-level decrease in a defendant’s base

offense level if he “clearly demonstrates acceptance of responsibility for his

offense.” U.S.S.G. § 3E1.1(a). “The defendant bears the burden of clearly

demonstrating acceptance of responsibility and must present more than just a guilty

plea.” United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir.1999). “Conduct



                                            4
resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the

Administration of Justice) ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct. There may, however, be extraordinary

cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. §

3E1.1, comment. (n.4). “The sentencing judge is in a unique position to evaluate a

defendant's acceptance of responsibility. For this reason, the determination of the

sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1,

comment. (n.5).

      Velazquez presented no evidence of extraordinary circumstances that,

despite his obstructive conduct, would entitle him to acceptance of responsibility.

The district court did not clearly err when it denied Velazquez an adjustment for

acceptance of responsibility.

4) Aggravating Role

      “A district court’s upward adjustment of a defendant’s Guidelines offense

level . . . under U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear error.”

United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). “The government

bears the burden of proving by a preponderance of the evidence that the defendant

had an aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216,

1226 (11th Cir. 2003). Under U.S.S.G. § 3B1.1, a three-level enhancement may be



                                           5
applied if “the defendant was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more participants or was

otherwise extensive.” U.S.S.G. § 3B1.1(b). The factors that a court should

consider in determining the nature of the defendant’s role include:

      [T]he exercise of decision making authority, the nature of
      participation in the commission of the offense, the recruitment of
      accomplices, the claimed right to a larger share of the fruits of the
      crime, the degree of participation in planning or organizing the
      offense, the nature and scope of the illegal activity, and the degree of
      control and authority exercised over others.

U.S.S.G. § 3B1.1, comment. (n.4). This Court has held that “the management

enhancement is appropriate for a defendant who arranges drug transactions,

negotiates sales with others, and hires others to work for the conspiracy.” United

States v. Matthews, 168 F.3d 1234, 1249 (11th Cir. 1999). The assertion of control

or influence over only one individual is enough to support a § 3B1.1 enhancement.

See United States v. Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000).

      Here, the record indicates there were at least five participants in the

conspiracy: Velazquez, Sandoval, Gonzalez, Lopez, and Mejia. Gonzalez’s

testimony established that Velazquez directed all of his actions in the conspiracy.

The district court did not clearly err in determining that the government

established, by a preponderance of the evidence, that Velazquez was a manager or

supervisor within the meaning of U.S.S.G. § 3B1.1(b).

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5) Safety-Valve Relief

      “When reviewing a district court’s safety-valve decision, we review for clear

error a district court’s factual determinations and de novo the court’s legal

interpretation of the statutes and sentencing guidelines.” United States v. Poyato,

454 F.3d 1295, 1297 (11th Cir. 2006).

      The Guidelines provide for sentencing without regard to any statutory

minimum—the so-called safety valve—with respect to certain offenses, when

specific requirements are met. U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f). The

Guidelines also permit a two-level reduction in the offense level for certain

drug-related crimes if the defendant meets the five criteria set forth in § 5C1.2 and

§ 3553(f). U.S.S.G. § 2D1.1(b)(11). A defendant has the burden of proving his

eligibility for safety-valve relief. United States v. Cruz, 106 F.3d 1553, 1557 (11th

Cir. 1997). The defendant must show: (1) he does not have more than one criminal

history point; (2) he did not use violence or possess a firearm or other dangerous

weapon during the offense; (3) death or serious bodily injury did not occur to any

person as a result of the offense; (4) he was not an organizer, leader, manager, or

supervisor of others in the offense and was not engaged in a continuing criminal

enterprise; and (5) he truthfully provided the government with all information and

evidence he had “concerning the offense or offenses that were part of the same



                                           7
course of conduct or of a common scheme or plan . . . .” 18 U.S.C. § 3553(f);

U.S.S.G. § 5C1.2(a).

      A defendant who had a managerial role in the offense is not eligible for

safety-valve relief. See U.S.S.G. § 5C1.2(a). The district court did not err when it

denied Velazquez safety-valve relief under U.S.S.G. § 5C1.2 and 18 U.S.C.

§ 3553(f).

6) Victim Related Enhancement

      Under U.S.S.G. § 3A1.2(c)(1), a six-level enhancement is applied “if, in a

manner creating a substantial risk of bodily injury, the defendant . . . knowing or

having reasonable cause to believe that a person was a law enforcement officer,

assaulted such officer during the course of the offense or immediate flight

therefrom . . . .” U.S.S.G. § 3A1.2(c)(1). Here, only the vehicle confrontation with

Agent Boho occurred during immediate flight from the offense. The incidents in

Madrid and the Canary Islands were post-indictment.

      In United States v. Rice, 43 F.3d 601, 608 (11th Cir. 1995), we refused to

consider an alleged Guidelines error where the defendant’s sentencing range was

unaffected by the alleged error. Because Velazquez’s recommended sentence does

not change with the six-level victim related enhancement, it is unnecessary for us

to determine whether the district court erred when it applied the six-level



                                          8
enhancement.

7) Sentence Reasonableness

      We review sentences imposed by the district court for reasonableness using

the abuse-of-discretion standard. See United States v. Booker, 543 U.S. 220, 261,

125 S.Ct. 738, 765-66, 160 L.Ed.2d 403 (2004); United States v. Pugh, 515 F.3d

1179, 1191 (11th Cir. 2008). Reasonableness review is deferential and “the party

who challenges the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both [the] record and the factors in section 3553(a).”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      “If the Guidelines calculation is correct, or if the miscalculation is harmless,

we consider whether the sentence is reasonable” in light of the factors outlined in

§ 3553(a) and the district court’s reasons for imposing a particular sentence.

United States v. Williams, 456 F.3d 1353, 1360-61 (11th Cir. 2006). The

§ 3553(a) factors that a district court must consult when determining a reasonable

sentence include: (1) the nature and circumstances of the offense and the history

and characteristics of the defendant; (2) the need to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the

offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need

to provide the defendant with needed educational or vocational training or medical



                                           9
care; (6) the kinds of sentences available; (7) the Sentencing Guideline range; (8)

pertinent policy statements of the Sentencing Commission; (9) the need to avoid

unwanted sentencing disparities; and (10) the need to provide restitution to victims.

Talley, 431 F.3d at 786. “The weight to be accorded any given § 3553(a) factor is

a matter committed to the sound discretion of the district court.” United States v.

Clay, 483 F.3d 739, 743 (11th Cir. 2007). “When reviewing the length of a

sentence for reasonableness, we will remand for resentencing if 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.”

Williams, 456 F.3d at 1336.

      After considering all of the § 3553(a) factors, the district court determined

that sentences of 360 months imposed concurrently were appropriate. Velazquez

has not shown that the district court abused its discretion by imposing such

sentences.

      AFFIRMED.




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