                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                   FILED
                           ________________________        U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                  May 2, 2007
                                No. 06-15293                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                    D. C. Docket No. 04-00164-CR-T-30-EAJ

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

SANTOS ORDUNIZ,
a.k.a. Santos Ordonez,

                                                            Defendant-Appellant.


                          ________________________

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

                                 (May 2, 2007)

Before ANDERSON, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

      Santos Orduniz (“Orduniz”) appeals his 120-month sentence for conspiring
to possess with intent to distribute five kilograms or more of cocaine in violation of

21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II), and 21 U.S.C. §846; and possessing five or

more kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II),

and 18 U.S.C. § 2. At the sentencing hearing, the district court calculated

Orduniz’s total adjusted offense level at 25, with a Criminal History Category of

III. Ordinarily, under the Guidelines, this would have subjected Orduniz to a

sentencing range of 70-87 months. However, because a mandatory minimum

sentence applied to Orduniz’s offenses pursuant to 21 U.S.C.

§ 841(b)(1)(A)(ii)(II), the district court sentenced Orduniz to the mandatory

minimum term of ten years.

      On appeal, Orduniz argues that the district court erred by sentencing him to

a term that was higher than the applicable Sentencing Guideline range. Orduniz

notes that his base offense level of 30 under U.S.S.G. § 2D1.1(a)(3) (2003), which

he received by operation of the Guidelines based on his minor-role status, has a

corresponding drug quantity level below the drug quantity necessary to trigger the

mandatory minimum sentence of ten years. Specifically, level 30 corresponds to

“at least 3.5 KG but less than 5 KG,” which is less than the amount (5 kilograms)

necessary to trigger the mandatory minimum of ten years. U.S.S.G. § 2D1.1(c)(5).

Orduniz appears to argue that the mandatory minimum should therefore not apply.



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       Orduniz did not raise in the district court his argument that the base offense

level of 30 corresponds to a lower quantity of drugs and thus requires a sentence

below the mandatory minimum. Therefore, we review it for plain error. See

United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005) (per curiam)

(argument reviewed for plain error when the defendant did not object below).

Thus, Orduniz must prove that “(1) there is an error; (2) that is plain or obvious;

(3) affecting [his] substantial rights in that it was prejudicial and not harmless; and

(4) that seriously affects the fairness, integrity, or public reputation of the judicial

proceedings.” Id. at 1323 (quotation marks and citations omitted). Upon review of

the presentence investigation report and sentencing transcript, and upon

consideration of the briefs of the parties, we find no plain error.

       According to the Guidelines, “[w]here a statutorily required minimum

sentence is greater than the maximum of the applicable guideline range, the

statutorily required minimum sentence shall be the guideline sentence.” U.S.S.G.

§ 5G1.1(b) (2003) (emphasis added). Here, Orduniz pled guilty to conspiring to

possess and possessing 5 kilograms or more in violation of 18 U.S.C. § 2; 21

U.S.C. § 841(a)(1), (b)(1)(A)(ii)(II); and 21 U.S.C. § 846. Under the applicable

penalty provision, offenses involving 5 kilograms or more of cocaine trigger a

mandatory minimum sentence of ten years. 21 U.S.C. § 841(b)(1)(A)(ii)(II).



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Therefore the correct calculation of Orduniz’s guideline range yielded a sentence

of 120 months’ imprisonment because his statutory minimum sentence was 120

months. See U.S.S.G. § 5G1.1(b). It is undisputed that Orduniz did not qualify for

a safety valve reduction under 18 U.S.C. § 3553(f), which would allow sentencing

without regard to a mandatory minimum, and the government did not move for the

district court to recognize substantial assistance by Orduniz under 18 U.S.C.

§ 3553(e). Therefore, the district court properly applied the mandatory minimum

sentence and did not plainly err in sentencing Orduniz to a term of ten years’

imprisonment. Accordingly, we affirm.

      AFFIRMED.




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