                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                    JANUARY 11, 2008
                                                    THOMAS K. KAHN
                              No. 07-11344
                                                         CLERK
                           Non-Argument Calendar
                         ________________________

                 D. C. Docket No. 06-00072-CR-FTM-29-SPC

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                    versus

JOSE LUIS SALAZAR-FLORES,

                                                     Defendant-Appellant.

                         ________________________

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

                              (January 11, 2008)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Jose Luis Salazar-Flores appeals his 188-month sentence for possession with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A)(viii). After review, we affirm.

                                I. BACKGROUND

      Salazar-Flores was arrested after he delivered methamphetamine to an

undercover Drug Enforcement Agency (“DEA”) agent. Salazar-Flores,

accompanied by Jose Ascencion-Perez, drove his pickup to a prearranged meeting

place at a Cracker Barrel restaurant. Salazar-Flores indicated to the DEA agent

that he was the person delivering the methamphetamine. Salazar-Flores walked the

agent to another car driven by Arbey Medina-Flores, Salazar-Flores’s cousin.

Salazar-Flores opened a rear passenger door and motioned to the DEA agent that

the drugs were in the back. When the DEA agent did not see any drugs, Medina-

Flores stated that the drugs were behind the cushioning of a child car seat and lifted

the cushioning. The DEA agent saw several cylindrical objects wrapped in

cellophane.

      Using a razor blade produced by Salazar-Flores, the DEA agent opened one

of the packages and found a brown, powdery substance. After Salazar-Flores,

Medina-Flores and Ascencion-Perez were arrested, lab reports confirmed that the

substance consisted of 2.144 kilograms of a methamphetamine mixture.

      At his plea hearing, Salazar-Flores indicated that he wished to enter a guilty



                                            2
plea, but also maintained essentially that he was a drug mule and that, although he

knew he was delivering drugs hidden in the child car seat, he did not know that the

drug was methamphetamine. Defense counsel expressed concern that there might

not be a factual basis for a guilty plea and that his client might not want to persist

in his plea. After a recess, Salazar-Flores entered a not guilty plea.

      Salazar-Flores, Medina-Flores and Ascencion-Perez were tried together.

Salazar-Flores’s defense was that he was innocent because, although he suspected

there might be an illegal substance in the child car seat, he did not know for sure

and he did not know that the substance was methamphetamine. Salazar-Flores

called co-defendant Ascencion-Perez as a defense witness. Ascencion-Perez

testified that he and Salazar-Flores had gone to the Cracker Barrel restaurant for

work and were unaware of the drugs in the child car seat.

      In addition, Salazar-Flores testified on behalf of his cousin Medina-Flores.

Specifically, Salazar-Flores testified that when he met the undercover agent, he

thought he was delivering the child car seat. Salazar-Flores also testified that he

did not know there were drugs in the car seat and that he thought the person to

whom he was delivering the car seat would give him work in construction or

painting. The jury convicted Salazar-Flores and his co-defendants.

      Salazar-Flores’s PSI recommended a total adjusted offense level of 36,



                                            3
which included a two-level enhancement for obstruction of justice. The PSI also

recommended that Salazar-Flores not receive an acceptance of responsibility

reduction. Based on a total offense level of 36 and a criminal history category of I,

the PSI recommended an advisory guideline range of 188 to 235 months’

imprisonment. The statutory mandatory-minimum sentence was ten years’

imprisonment. Salazar-Flores objected to the PSI, arguing, inter alia, that he was

entitled to an acceptance of responsibility reduction. In the addendum to the PSI,

the probation officer noted that Salazar-Flores declined to participate in an

interview after his conviction.

      At sentencing, Salazar-Flores argued that his statements during his plea

hearing showed that he had accepted responsibility and that he was an uneducated

man who had been manipulated and influenced by others. The district court

overruled Salazar-Flores’s objection, finding that Salazar-Flores’s later trial

testimony denying liability was inconsistent with his statements at the plea hearing

and indicated that Salazar-Flores did not accept responsibility.

      Addressing the 18 U.S.C. § 3553(a) sentencing factors, Salazar-Flores

argued that (1) he had only a second grade education, (2) he had come to the

United States only to find work and a better place for himself, (3) he had been

manipulated by a large drug organization, and (4) that he was “at the bottom” of



                                           4
that drug organization. Salazar-Flores also pointed out that he had no prior

criminal history; had a wife and four children; and, as a removable alien, would be

held in an INS prison and returned to Mexico after he finished his sentence.

Salazar-Flores urged the district court to impose a ten-year sentence. In response,

the government noted that (1) Salazar-Flores had testified on Medina-Flores’s

behalf at trial, (2) there was evidence that the Cracker Barrel deal was not the first

transaction and (3) the amount of drugs involved did not warrant a sentence below

the advisory guidelines range.

      The district court stated that it considered all of Salazar-Flores’s arguments

and the § 3553(a) factors, but found that the only mitigating factor was Salazar-

Flores’s lack of a prior criminal history. Additionally, the district court noted that

Salazar-Flores was in the country illegally, was involved in the distribution of a

substantial amount of methamphetamine, even if he was just a “mule,” and that he

had lied about his involvement. The district court imposed a 188-month sentence.

Salazar-Flores filed this appeal.

                                    II. DISCUSSION

A.    Acceptance of Responsibility Reduction

      On appeal, Salazar-Flores argues that the district court clearly erred in not

providing a two-level acceptance of responsibility reduction, pursuant to



                                           5
U.S.S.G. § 3E1.1.1

        A defendant is entitled to a two-level reduction if he “clearly demonstrates

acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). The

commentary to § 3E1.1 indicates that in the “rare situation[]” that a defendant

proceeds to trial “to assert and preserve issues that do not relate to factual guilt,”

the defendant may be entitled to an acceptance of responsibility reduction if his

“pre-trial statements and conduct” demonstrate that he has accepted responsibility.

U.S.S.G. § 3E1.1 cmt. n.2. However, that commentary also provides that a

defendant who denies the “essential factual elements of guilt” at trial is not entitled

to an acceptance of responsibility reduction. Id.2

        Here, the district court did not clearly err in finding that Salazar-Flores did


        1
         We review a district court’s factual findings concerning acceptance of responsibility for
clear error. United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005). “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. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).
        2
        The relevant commentary to § 3E1.1 states in full:
       This adjustment is not intended to apply to a defendant who puts the government to
       its burden of proof at trial by denying the essential factual elements of guilt, is
       convicted, and only then admits guilt and expresses remorse. Conviction by trial,
       however, does not automatically preclude a defendant from consideration for [the
       acceptance of responsibility] reduction. In rare situations a defendant may clearly
       demonstrate an acceptance of responsibility for his criminal conduct even though he
       exercises his constitutional right to a trial. This may occur . . . where a defendant
       goes to trial to assert and preserve issues that do not relate to factual guilt . . . . In
       each such instance, however, a determination that a defendant has accepted
       responsibility will be based primarily upon pre-trial statements and conduct.
U.S.S.G. § 3E1.1 cmt. n.2 (emphasis added).

                                                   6
not accept responsibility for his drug trafficking offense. Salazar-Flores pled not

guilty and maintained his innocence during trial. His defense attempted to attack

the essential scienter element of his offense. He did not go to trial to assert and

preserve issues unrelated to his factual guilt. Thus, Salazar-Flores’s decision to go

to trial does not present one of the “rare situations” noted in the commentary to

§ 3E1.1 in which his entitlement to acceptance of responsibility can be

demonstrated by his admission during his plea hearing that he knew he was

delivering drugs. Under the circumstances, the record does not clearly show that

Salazar-Flores accepted responsibility for his offense.

B.     Minor Role Reduction

       Salazar-Flores argues for the first time on appeal that he should have

received a role reduction because he was a mere drug “mule.”3

       If the defendant was a minor participant in the criminal activity, the district

court decreases the offense level by two levels. 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.” U.S.S.G. § 3B1.2 cmt. n.5. If the defendant



       3
         Ordinarily, we review a district court’s determination of a defendant’s role in the offense
for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999). However,
because Salazar failed to request a minor-role reduction at sentencing, we review only for plain
error. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005) (applying
plain error review to sentencing issues not raised before the district court).

                                                 7
was a minimal participant in the criminal activity, the district court decreases the

offense level by four levels. U.S.S.G. § 3B1.2(a). A minimal participant is one

who “plays a minimal role in concerted activity”; this phrase “is intended to cover

defendants who are plainly among the least culpable of those involved in the

conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. The defendant has the burden of

establishing his mitigating role in the offense by a preponderance of the evidence.

De Varon, 175 F.3d at 939.

      Two principles guide a district court’s consideration: (1) the court must

compare the defendant’s role in the offense with the relevant conduct attributed to

him in calculating his base offense level; and (2) the court may compare the

defendant’s conduct to that of other participants involved in the offense. Id. at

940-45. When the relevant conduct attributed to a defendant is identical to his

actual conduct, he cannot prove he is entitled to a role reduction simply by pointing

to some broader scheme for which he was not held accountable. Id. at 941.

      Here, the record does not suggest that it was error, let alone plain error, to

deny Salazar-Flores a role reduction. The district court calculated Salazar-Flores’s

offense level using the amount of drugs found in the child car seat. Thus, Salazar-

Flores’s relevant conduct and his actual conduct are identical, and he was not held

accountable for the larger drug conspiracy for which he claims to have worked



                                           8
only as a mule. Furthermore, the over two kilograms of methamphetamine mixture

found in the car seat is a substantial amount of drugs.

       In addition, Salazar-Flores appears equally culpable with the other

participants in the drug transaction at the Cracker Barrel, namely his co-

defendants. See id. at 944 (explaining that it is possible that some conspiracies will

have no minor or minimal participants and that the district court should compare

the defendant’s role only to the other identifiable participants in the relevant

conduct and that “[t]he conduct of participants in any larger criminal conspiracy is

irrelevant”). From the evidence presented at trial and recounted in the PSI,

Salazar-Flores met with the undercover DEA agent, identified himself as the

person who would deliver the drugs and escorted the DEA agent to the car where

the drugs were hidden.4 He also handed the DEA agent a razor blade and asked

him if he wanted to verify the quality of the drugs. We cannot say, under these

facts, that Salazar-Flores was entitled to a role reduction.5

C.     Reasonableness


       4
         We note that the government presented evidence at trial from which a reasonable
inference could be drawn that Salazar-Flores was the person identified only as “Chulucke,” who
arranged the drug transaction by telephone and claimed he could arrange future deliveries.
However, even if we disregard this evidence, Salazar-Flores’s role in the Cracker Barrel
transaction was not minor or minimal.
       5
         Because Salazar-Flores was not entitled to a role reduction, his argument that he was
entitled to a three-level reduction under U.S.S.G. § 2D1.1(a)(3), which is contingent upon
receiving a role reduction, is also without merit.

                                                9
       Salazar-Flores contends that his 188-month sentence is unreasonable

because the district court did not adequately consider the § 3553(a) factors.6

       After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district

court, in determining a reasonable sentence, must consider the correctly calculated

advisory guidelines range and the § 3553(a) factors. United States v. Talley, 431

F.3d 784, 786 (11th Cir. 2005).7 Although the district court must consider the

§ 3553(a) factors, “nothing in Booker or elsewhere requires the district court to

state on the record that it has explicitly considered each of the § 3553(a) factors or

to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005). “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.

Williams, 456 F.3d 1353, 1363 (11th Cir. 2006).


       6
        In Gall v. United States, the Supreme Court stated that its “explanation of
‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar abuse-
of-discretion standard of review now applies to appellate review of sentencing decisions.” Gall
v. United States, No. 06-7949, ___ U.S. ___, ___ S. Ct. ___, 2007 WL 4292116, at *6 (Dec. 10,
2007). The Supreme Court further explained that “[t]he uniqueness of the individual case . . .
does not change the deferential abuse-of-discretion standard of review that applies to all
sentencing decisions.” Id. at *8.
       7
         The § 3553(a) factors 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
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
sentencing guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. See 18 U.S.C. § 3553(a).

                                                 10
      We have already concluded that the district court considered the correctly

calculated advisory guidelines range. Furthermore, although the district court did

not discuss each factor individually, it did state that it had considered the § 3553(a)

factors. The district court also stated that it had considered Salazar-Flores’s

arguments in mitigation, which included, among others, his assertions about his

limited education, his limited involvement in the transaction and his immigration

status, factors he now argues the district court inadequately considered. The

district court concluded that the only truly mitigating factor was Salazar-Flores’s

lack of a criminal history and placed greater weight on the large amount of drugs

involved and Salazar-Flores’s willingness to lie at trial about his involvement in

the offense. We cannot say that the district court abused its discretion in weighing

the various § 3553(a) factors or that the 188-month sentence, at low end of the

advisory guidelines range, was outside the range of reasonable sentences from

which the district court could choose.

      AFFIRMED.




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