            Case: 12-11413   Date Filed: 08/23/2013   Page: 1 of 7




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-11413
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:11-cr-60269-DTKH-2



UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

versus

ELIO A. RIQUENES,

                     Defendant - Appellant.

                       ________________________

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

                             (August 23, 2013)

Before CARNES, Chief Judge, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
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       Elio Alfredo Riquenes appeals his 36-month sentence for one count of

conspiracy to possess with intent to distribute oxycodone, in violation of 21 U.S.C.

§§ 846, 841(a)(1), and 841(b)(1)(C). Riquenes procured 2,106 suspected

oxycodone pills, 1 and two other co-conspirators arranged to sell them to a Drug

Enforcement Administration (DEA) confidential informant. On appeal, Riquenes

argues that: (1) his unsophisticated and limited role in the conspiracy merited a

two-level minor role reduction to his offense level; and (2) his sentence, even

though representing a 10-month downward variance from the advisory guideline

range of 46 to 57 months’ imprisonment, is substantively unreasonable. After a

thorough review of the record, we affirm.

                                 I. Minor Role Reduction

       We review a district court’s factual determination of a defendant’s role in

the offense for clear error. United States v. Rodriguez De Varon, 175 F.3d 930,

938 (11th Cir. 1999) (en banc); see 18 U.S.C. § 3742(e) (“The court of

appeals . . . shall accept the findings of fact of the district court unless they are

clearly erroneous . . . .”). The proponent of the downward adjustment “always

bears the burden of proving a mitigating role in the offense by a preponderance of

the evidence.” De Varon, 175 F.3d at 939.

       A defendant who is a “minor participant” in a criminal offense receives a

       1
          Although Riquenes and his co-conspirators believed the pills to be oxycodone, the pills
later tested negative for controlled substances.
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two-level reduction to his base offense level. U.S.S.G. § 3B1.2(b). A minor

participant is a participant 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; see id.

§ 3B1.2, cmt. n.4 (explaining that a “minimal participant” is “plainly among the

least culpable of those involved in the conduct of a group”).

      Although the district court’s factual determination regarding a defendant’s

role in the offense is entitled to deference, it “should be informed by two principles

discerned from the Guidelines: first, the defendant’s role in the relevant conduct

for which [he] has been held accountable at sentencing, and, second, [his] role as

compared to that of other participants in [his] relevant conduct.” De Varon, 175

F.3d at 940. With regard to the first principle, “the district court must measure the

defendant’s role against [his] relevant conduct, that is, the conduct for which [he]

has been held accountable” in calculating his base offense level. United States v.

Keen, 676 F.3d 981, 997 (11th Cir.) (internal quotation marks omitted), cert.

denied, 133 S. Ct. 573 (2012). As for the second principle, the district court may

make an assessment of relative culpability among the various participants in a

criminal offense that were involved in the relevant conduct attributed to the

defendant. See Keen, 676 F.3d at 997. Even if a defendant played a lesser role in

the relevant criminal conduct, “it is possible that none are minor or minimal

participants,” and so the district court “must determine that the defendant was less


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culpable than most other participants in [his] relevant conduct.” De Varon, 175

F.3d at 944 (emphasis in original) (internal quotation marks omitted).

      Here, Riquenes did not carry his burden to show, by a preponderance of the

evidence, that he was entitled to a minor role reduction to his offense level, and the

district court’s determination to the contrary was not clearly erroneous. See id. at

938. In keeping with the first principle of De Varon, the district court looked to

the extent that Riquenes was involved in the relevant conduct of his offense, and

determined that the relevant conduct encompassed only the drugs with which

Riquenes was personally involved. See id. at 940–42. Then, looking to the

relative culpability of all of the participants and concluding that they were

responsible for the same relevant conduct, the district court determined that it was

ultimately Riquenes who found and negotiated with the oxycodone supplier—

actions which constituted a significant degree of responsibility. Accordingly, the

district court concluded that Riquenes was not less culpable than the other

participants in the conspiracy. The district court had “considerable discretion” in

making this factual determination, and we conclude that its decision was not

clearly erroneous. See id. at 946.

                          II. Substantive Reasonableness

      We review the substantive reasonableness of a sentence using a deferential

abuse of discretion standard. United States v. Irey, 612 F.3d 1160, 1165 (11th Cir.


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2010) (en banc). We will vacate a sentence “if, but 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.” Id. at

1190 (internal quotation marks omitted). The party challenging the sentence bears

the burden of showing it to be “unreasonable in light of the record and the

§ 3553(a) factors.” United States v. Langston, 590 F.3d 1226, 1236 (11th Cir.

2009).

      The district court must issue a punishment “sufficient, but not greater than

necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a).

These purposes include the need for a sentence to reflect the seriousness of the

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

criminal conduct, and to protect the public from future criminal conduct. Id.

§ 3553(a)(2). Additional considerations include the nature and circumstances of

the offense, the history and characteristics of the defendant, the applicable

guideline range, and the need to avoid unwarranted sentencing disparities. Id.

§§ 3553(a)(1), (4)(A), and (6). 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, 526 F.3d 1312, 1322 (11th Cir. 2008) (per curiam) (internal

quotation marks omitted). We will not “set aside a sentence merely because we


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would have decided that another one is more appropriate. . . . A district court’s

sentence need not be the most appropriate one, it need only be a reasonable one.”

Irey, 612 F.3d at 1191 (citations omitted). “[W]e ordinarily expect a sentence

within the Guidelines range to be reasonable.” United States v. Hunt, 526 F.3d

739, 746 (11th Cir. 2008) (alterations and internal quotation marks omitted). The

fact that a given sentence is lower than the statutory maximum may also be an

indicator of reasonableness. See United States v. Valnor, 451 F.3d 744, 751–52

(11th Cir. 2006).

      Riquenes has not carried his burden to show that his sentence, which

represented a 10-month downward variance from the guideline range, was

unreasonable, or that the district court committed a clear error of judgment in

weighing the § 3553(a) factors. See Irey, 612 F.3d at 1190. The district court

recognized its obligation to consider the § 3553(a) factors, and explicitly

considered Riquenes’s familial and economic situation, as well as his

unsophisticated participation in an unsophisticated oxycodone scheme; on the other

hand, the district court recognized the criminal severity of oxycodone distribution.

The district court also noted that Riquenes had no criminal history and was

unlikely to appear before it again on a similar offense, but that general deterrence

principles favored a sentence exemplifying the significant consequences for drug

offenses.


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      As for any sentencing disparity between Riquenes and his co-conspirators,

Riquenes has not shown that the district court’s refusal to impose a greater

downward variance based on this factor is unreasonable. Similar to its analysis of

the minor-role reduction issue, the district court stated that Riquenes’s role was

significant, and the court could reasonably have credited the government’s

assertion that the co-conspirator’s role—which was one of mere introduction

between the oxycodone dealer and Riquenes—indeed merited a lighter sentence.

The weighing of these § 3553(a) factors was committed to the district court’s

“sound discretion,” and Riquenes has not shown that these conclusions were

unreasonable. See Williams, 526 F.3d at 1322; see also Langston, 490 F.3d at

1237. Additionally, Riquenes’s sentence is below the guideline range and

significantly below the statutory maximum term of 20 years’ imprisonment, both

of which are additional indicia of reasonableness. See Hunt, 526 F.3d at 746;

Valnor, 451 F.3d at 751–52; see also 21 U.S.C. § 841(b)(1)(C).

      AFFIRMED.




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