            Case: 11-15694   Date Filed: 01/16/2013   Page: 1 of 6

                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 11-15694
                          Non-Argument Calendar
                        ________________________

                   D. C. Docket No. 5:11-cr- 00023-RS-12

UNITED STATES,

                                                                Plaintiff-Appellee,

                                   versus


NESTOR JOSE HERNANDEZ-ESTRADA,

                                                          Defendant-Appellant.


                        ________________________

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

                             (January 16, 2013)

Before TJOFLAT, JORDAN, and KRAVITCH, Circuit Judges.

PER CURIAM:

     Nestor Jose Hernandez-Estrada appeals his 120-month prison sentence for
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one count of conspiracy to distribute, and to possess with intent to distribute,

methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A)(viii) and 846. Mr.

Hernandez-Estrada argues the district court erred in denying him safety-valve relief

under U.S.S.G. § 5C1.2 and a four-level mitigating role reduction under U.S.S.G. §

3B1.2(a). We disagree and affirm the sentence.

      Mr. Hernandez-Estrada pled guilty to a drug conspiracy charge, which

stemmed from his involvement in drug-trafficking activities with multiple co-

conspirators. According to the pre-sentence investigation report, he manned a drug

stash house for several months and assisted in transporting drugs and payments.

Additionally, a Remington rifle and ammunition were recovered from his bedroom

in the stash house. Law enforcement officials had previously observed Mr.

Hernandez-Estrada and a co-conspirator purchase a Marlin rifle at a roadside flea

market, and subsequently saw Mr. Hernandez-Estrada load what turned out to be

money and the Marlin rifle into a secret compartment of a co-conspirator’s car. At

the sentencing hearing, Mr. Hernandez-Estrada admitted that he was present when

the co-conspirator purchased the rifle and that he placed the rifle into the trunk

after the initial purchase, but denied that he subsequently put that rifle in the secret

compartment in furtherance of the conspiracy.

      The district court rejected Mr. Hernandez-Estrada’s request to characterize


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his role in the drug conspiracy as minimal. The court instead determined that he

was a minor participant, and reduced his offense level by two levels. See U.S.S.G.

§ 3B1.2(b). The district court also rejected the request for safety-valve relief

because Mr. Hernandez-Estrada received a two-level enhancement for possession

of a firearm. The district court imposed the statutory minimum sentence of 120

months’ imprisonment.

      On appeal, Mr. Hernandez-Estrada argues that the district court should have

granted his request for safety-valve relief because (1) he only possessed the Marlin

rifle for a brief moment when he placed it into the vehicle; and (2) the evidence did

not connect him to the Remington rifle recovered in his bedroom. Mr. Hernandez-

Estrada also contends that the district court should have deemed him a minimal,

rather than a minor, participant in the conspiracy because (1) he was only involved

for a short period of time; (2) he did not profit significantly from the conspiracy;

and (3) he was at the lowest level of the conspiracy.

      Regarding safety-valve relief, we review a district court’s factual

determinations for clear error and the court’s legal interpretation of the statutes and

sentencing guidelines de novo. United States v. Poyato, 454 F.3d 1295, 1297 (11th

Cir. 2006) (per curiam). To qualify for safety-valve relief, a defendant, among

other things, must not have possessed a firearm in connection with the offense. See


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18 U.S.C. § 3553(f)(2). At issue here is the district court’s factual determination

that Mr. Hernandez-Estrada did not satisfy this requirement. The record does not

reflect clear error, and we therefore affirm the district court’s denial of safety-valve

relief.

          Mr. Hernandez-Estrada had the burden of showing by a preponderance of

the evidence that he did not possess a firearm in connection with the offense. See

United States v. Rodriguez De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en

banc); United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). The

undisputed facts show that Mr. Hernandez-Estrada was present when his co-

conspirator purchased a rifle, and he placed that firearm into the co-conspirator’s

vehicle. The district court also heard testimony indicating that Mr. Hernandez-

Estrada later transferred that same firearm, along with cash, into a secret

compartment in another vehicle. And during his arrest, a second rifle was

discovered in Mr. Hernandez-Estrada’s bedroom in the stash house. Based on these

facts, the district court did not clearly err in determining that Mr. Hernandez-

Estrada was not eligible for safety-valve relief.

          Without fully developing the argument or alleging error by the district court,

Mr. Hernandez-Estrada appears to suggest that he was induced into entering the

plea agreement based on misinformation from his attorney regarding the


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applicability of safety-valve relief. Mr. Hernandez-Estrada’s appellate counsel

fully acknowledges, however, that “[t]here was not a promise by the Government”

regarding safety-valve relief. See Appellant’s Br. at 12. Furthermore, Mr.

Hernandez-Estrada never moved to withdraw his plea or otherwise contest its

validity. Nor does he allege on appeal that the plea was involuntary or

unintelligent. In any event, “a plea based on competent, good faith advice which

later turns out to be incorrect is voluntary and intelligent.” Downs-Morgan v.

United States, 765 F.2d 1534, 1539 n.11 (11th Cir. 1985).

      We review the district court’s factual determination regarding a role

reduction for clear error. See United States v. Keen, 676 F.3d 981, 997 (11th Cir.

2012). The district court has considerable discretion in making the fact-intensive

determination of whether the defendant had a minor or minimal role. See United

States v. Boyd, 291 F.3d 1274, 1277–78 (11th Cir. 2002); Rodriguez De Varon,

175 F.3d at 945. Although Mr. Hernandez-Estrada argues that he was a minimal

participant based on his limited role in the conspiracy, the district court did not

clearly err in determining that he was only a minor participant.

      A minimal-role adjustment is intended for situations where the defendant

lacks knowledge or understanding of the scope and structure of the enterprise. See

U.S.S.G. § 3B1.2, cmt. 4. The evidence here showed that Mr. Hernandez-Estrada


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manned the drug stash house for several months. Although Mr. Hernandez-Estrada

worked primarily under the direction of a co-conspirator, he admitted

responsibility for between five and fifteen kilograms of methamphetamine. He also

assisted in loading and transporting drugs and currency, and was involved with

some firearms. In light of these facts, the district court’s decision to characterize

Mr. Hernandez-Estrada as a minor participant was not clearly erroneous.

      AFFIRMED.




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