                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                              No. 09-14957                  MAY 06, 2010
                          Non-Argument Calendar              JOHN LEY
                                                               CLERK
                        ________________________

                    D. C. Docket No. 09-20387-CR-CMA

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ONEL MENDEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                                (May 6, 2010)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     After pleading guilty, Onel Mendez appeals his 37-month sentence for
knowingly receiving, possessing, concealing and storing stolen goods, in violation

of 18 U.S.C. § 2315. After review, we affirm.

                            I. BACKGROUND FACTS

A.    Offense Conduct

      On April 15, 2009, a shipping container loaded with 12 million Newport

cigarettes was stolen from a truck yard in Concord, North Carolina. On April 16,

2009, a private investigator hired by the cigarette manufacturer spotted a tractor

trailer pulling the stolen container on a Florida road. The Florida Highway Patrol

(“FHP”) performed a traffic stop, identified Mendez as the driver and confirmed

that the stolen cigarettes were inside the container. During a search of the tractor

trailer, FHP found a receipt from a convenience store in Mebane, North Carolina, a

signed shipper’s declaration of dangerous goods with “Newport boxes” listed as

cargo, a global positioning system (“GPS”) device, a cell phone and a portfolio

containing driver’s logs.

      After waiving his Miranda rights, Mendez gave conflicting statements

regarding how, when and where he came to be driving the tractor trailer and in

possession of the stolen container of cigarettes. The data from Mendez’s GPS

device and cell phone placed him at or near: (1) the manufacturer’s plant when the

cigarettes left the plant; (2) the truck yard where, and at the time when, the tractor



                                           2
trailer and container were stolen; and (3) a South Carolina truck stop where a truck

driver saw three men transfer the stolen container from a stolen rig to a tractor

trailer that matched the description of the tractor trailer Mendez was driving.

Further, Mendez later admitted that he had forged a signature on the bill of lading

and on log book entries for April 9 and 15, 2009. The log book also omitted any

stops along the route from North Carolina to Florida, including the stop Mendez

made in Mebane, North Carolina for which investigators had found a receipt.

B.    Sentencing

      The presentence investigation report (“PSI”) recommended: (1) a base

offense level of 6, pursuant to U.S.S.G. § 2B1.1(a)(2); (2) a 16-level increase,

under U.S.S.G. § 2B1.1(b)(1)(I), because the intended loss, $2,129,448, was more

than $1,000,000, but less than $2,500,000; (3) a 2-level increase, pursuant to

U.S.S.G. § 2B1.1(b)(12)(B), because the offense involved an organized scheme to

steal goods that were part of a cargo shipment; and (4) a 3-level reduction for

acceptance of responsibility. With an adjusted offense level of 21 and a criminal

history category of I, the PSI suggested an advisory guidelines range of 37 to 46

months’ imprisonment.

      Among other things, Mendez objected to the PSI’s failure to make a minor-




                                           3
role reduction.1 Mendez argued he was not involved in planning the offense, was

the last of three drivers to possess the stolen container, had no equity interest in the

cigarettes and was not going to be compensated based on the wholesale price

ultimately obtained for them, and had no role in the ultimate sale of the cigarettes.

Mendez contended that others coordinated the theft and planned distribution and he

merely transported the container from South Carolina to Florida.

       The government opposed a minor-role reduction because Mendez was being

held accountable for only his own conduct and not for the larger conspiracy. The

government pointed out that the undisputed facts from Mendez’s plea colloquy

showed that Mendez was involved throughout the duration of the crime and lied

repeatedly about his involvement once he was apprehended, all of which suggested

Mendez’s role was not minor. The government also noted that Mendez, who bore

the burden to show his minor role, had not offered any evidence of others involved

in the offense to compare culpability.



       1
         Most of Mendez’s PSI objections were addressed by the probation officer by revising
the PSI. Mendez objected to the factual accuracy of some of the offense conduct in the PSI,
specifically, the PSI’s (1) statement that the GPS device indicated the location of the container,
and (2) failure to include the fact that surveillance video showed at least two other drivers and
tractors trailers involved in the theft of the container in North Carolina hours before Mendez
took possession of the container in South Carolina. The revised PSI noted that this dispute was
unresolved, but that it did not affect guidelines calculations. At the sentencing hearing, Mendez
informed the court that all objections apart from the minor role reduction had been resolved.
Thus, Mendez abandoned these objections. In any event, the facts stated in this opinion were
drawn from the facts Mendez admitted in his plea colloquy.

                                                 4
      The district court overruled Mendez’s objection, concluding that it was “not

persuaded that this defendant’s role was minor in comparison to anyone else.” The

district court noted that Mendez was being held accountable for his own conduct.

The district court found that the adjusted offense level was 21, which, with a

criminal history category of I, yielded a sentence of 37 months at the low end of

the advisory guidelines range.

      Mendez asked for an 18-month sentence because his role as truck driver was

limited and he participated in the offense to provide financial support for his

family. In his sentencing memorandum, Mendez also noted that the stolen goods

had been recovered and that his advisory guidelines range would have been

substantially lower had it been calculated using the actual loss. Mendez personally

addressed the court and explained that he was poor and was driven to commit the

offense to support his family.

      The government asked for a sentence at the middle or high end of the

advisory guidelines range because Mendez had a prior fraud conviction and other

arrests for theft, he repeatedly lied to law enforcement during the investigation of

the offense, and he had not shown true remorse for his crime.

      The district court stated that it had carefully considered the PSI, the parties’

memoranda and the information presented during the sentencing hearing, including



                                           5
Mendez’s repeated lies to law enforcement when he was apprehended. The court

noted its consideration of the 18 U.S.C. § 3553(a) factors, namely Mendez’s

history and characteristics, the seriousness of the offense and the need to provide

deterrence. The district court declined to impose a downward variance based on

Mendez’s family circumstances, explaining that “most defendants who come to

court have family of some sort and that is not a sufficient basis.” The district court

imposed a 37-month sentence, at the low end of the advisory guidelines range of

37 to 46 months. Mendez appealed.

                                 II. DISCUSSION

      In reviewing the reasonableness of a sentence, we apply an abuse of

discretion standard using a two-step process. United States v. Pugh, 515 F.3d

1179, 1189-90 (11th Cir. 2008). First, we look at whether the district court

committed any significant procedural error, such as miscalculating the advisory

guidelines range, treating the guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts or failing to

adequately explain the chosen sentence. Id. at 1190. Then, we look at whether the

sentence is substantively unreasonable under the totality of the circumstances. Id.

      A.     Procedural Reasonableness

      Mendez argues that his sentence is procedurally unreasonable because the



                                           6
district court failed to properly calculate the advisory guidelines range when it

refused Mendez’s request for a minor role reduction pursuant to U.S.S.G.

§ 3B1.2(b).2

       Section 3B1.2 of the Sentencing Guidelines provides for a two-level

decrease if the defendant was a minor participant in any criminal activity.

U.S.S.G. § 3B1.2(b). A defendant is a minor participant if he is less culpable than

most other participants, but his role cannot be described as minimal. Id. § 3B1.2

cmt. n.5. The defendant has the burden of establishing his role in the offense by a

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

       “Two principles guide the 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.” United

States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006). When the relevant

conduct attributed to defendant is the same as his actual conduct, “he cannot prove

that he is entitled to a minor-role adjustment simply by pointing to some broader

scheme for which he was not held accountable.” Id.; see also De Varon, 175 F.3d

at 942-43 (concluding that“when a drug courier’s relevant conduct is limited to


       2
        We review for clear error a district court’s determination as to a defendant’s role in the
offense. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc)

                                                 7
[his] own act of importation, a district court may legitimately conclude that the

courier played an important or essential role in the importation of those drugs”).

      As to the second prong, the district court is permitted to “measure the

defendant’s conduct against that of other participants” but only “where the record

evidence is sufficient.” De Varon, F.3d at 934. Furthermore, “[t]he fact that a

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

conduct may not be dispositive of role in the offense, since it is possible that none

are minor or minimal participants.” De Varon, 175 F.3d at 944.

      Here, the district court did not clearly err in denying Mendez’s request for a

minor role reduction. Mendez’s relevant conduct matched his actual conduct; that

is, he was held accountable for receiving and transporting stolen cigarettes valued

at $2,129,448. The fact that Mendez received a 2-level enhancement for the

sophistication of the offense, pursuant to U.S.S.G. § 2B1.1(b)(12)(B), does not

change the result. Mendez’s offense was part of an organized scheme to steal the

cargo shipment, and Mendez played an integral role in that scheme as evidenced

by: (1) the GPS and cell phone data showing Mendez’s close proximity throughout

the offense; (2) the multiple participants; (3) the collaborative effort to load the

stolen container onto Mendez’s tractor trailer in South Carolina; and (4) Mendez’s

deliberate falsification of the bill of lading and driver’s logs. This evidence



                                            8
suggests Mendez was more than just a mere driver of the contraband.

       Furthermore, although there is some evidence of other participants in the

offense, Mendez failed to present evidence of their respective roles such that the

district court could make a meaningful comparison and assess relative culpability.

The only specific evidence of other participants – the three men who transferred

the stolen container to Mendez’s tractor trailer at a South Carolina truck stop –

does not suggest Mendez was less culpable. Thus, Mendez has not shown that his

sentence is procedurally unreasonable.3

B.     Substantive Reasonableness

       Mendez also has not shown that his 37-month sentence, at the low end of the

advisory guidelines range, is substantively unreasonable. The party who

challenges the sentence has the burden to show it is unreasonable in light of the

record and the § 3553(a) factors. United States v. Thomas, 446 F.3d 1348, 1351

(11th Cir. 2006).4 Although we do not apply a presumption of reasonableness, we

       3
        Mendez’s assertion that the district court treated the advisory guidelines range as
presumptively reasonable is not supported by the record. The district court determined
Mendez’s advisory guidelines range, considered the § 3553(a) factors and the parties’ arguments
with respect to them and concluded that a downward variance was not appropriate in Mendez’s
case.
       4
         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 needed
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)

                                                  9
ordinarily expect a sentence within the correctly calculated advisory guidelines

range to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

       Mendez knowingly drove a tractor trailer from South Carolina to Florida

while pulling a stolen container holding over 12 million cigarettes valued at over

$2 million. Mendez also falsified trucking records and repeatedly lied to law

enforcement after he was caught. Finally, at the crucial times, Mendez was in

North Carolina near the manufacturing plant and later the truck yard, which

suggests Mendez’s involvement in the scheme did not begin in South Carolina and

that he was more than just a mere driver. Contrary to Mendez’s claims, the district

court heard and considered Mendez’s arguments in mitigation, including that his

motive was to help his family, that he was not one of the masterminds of the

scheme and that the actual loss was much less than the intended loss. The district

court concluded that these circumstances did not warrant a sentence below the

advisory guidelines range of 37 to 46 months. Considering the totality of the

circumstances, we cannot say the district court abused its discretion in imposing a

37-month sentence.

       AFFIRMED.




the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).

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