                                                 [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                 FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                   ________________________ ELEVENTH CIRCUIT
                                                    FEB 09, 2009
                         No. 07-14427             THOMAS K. KAHN
                     Non-Argument Calendar            CLERK
                   ________________________

              D. C. Docket No. 07-00099-CR-T-23-TBM

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                             versus

JOSE ANTONIO GOVEO-ZARAGOZA,

                                                 Defendant-Appellant.


                   ________________________

                         No. 07-14554
                     Non-Argument Calendar
                   ________________________

              D. C. Docket No. 07-00099-CR-T-23-TBM

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                             versus
ANDRES ESCOBEDO-ESTRADA,
a.k.a. ANDRES ESTRADA-ESCOBEDO,


                                                      Defendant-Appellant.

                         ________________________

                               No. 07-14632
                           Non-Argument Calendar
                         ________________________

                   D. C. Docket No. 07-00099-CR-T-23-TBM

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                    versus

RAFAEL BUESA-HERRERA,
a.k.a. Rafael Humberto Herrera-Bueso,
a.k.a. Rafael Bueso-Herrera,

                                                      Defendant-Appellant.

                         ________________________

                               No. 07-14655
                           Non-Argument Calendar
                         ________________________

                   D. C. Docket No. 07-00099-CR-T-23-TBM

UNITED STATES OF AMERICA,




                                        2
                                                      Plaintiff-Appellee,

                             versus

ELEAZAR CAMACHO-MALDONADO,

                                                 Defendant-Appellant.

                   ________________________

                         No. 07-14656
                     Non-Argument Calendar
                   ________________________

              D. C. Docket No. 07-00099-CR-T-23-TBM

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                             versus

MIGUEL CRUZ-ACOSTA,

                                                 Defendant-Appellant.

                   _________________________

                         No. 07-15313
                     Non-Argument Calendar
                   ________________________

             D. C. Docket No. 07-00099-CR-T-17-TGW

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,



                                3
                                   versus

FRANCISCO PAUL VALDEZ-GONZALEZ,

                                                          Defendant-Appellant.

                        _______________________

                              No. 07-15444
                          Non-Argument Calendar
                        ________________________

                  D. C. Docket No. 07-00099-CR-T-23TBM

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

JORGE ARMANDO LIZARRAGA-CACERES,

                                                          Defendant-Appellant.


                        ________________________

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

                            (February 9, 2009)

Before DUBINA, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellants Jose Antonio Goveo-Zaragoza, Andres Estrada-Escobedo, Rafael

                                      4
Buesa-Herrera, Eleazer Camacho-Maldonado, Miguel Cruz-Acosta, Francisco Paul

Valdez-Gonzalez, and Jorge Lizarraga-Caceres appeal their sentences for drug

offenses. Valdez-Gonzalez also challenges his conviction. The seven

codefendants were indicted by a federal grand jury on charges of conspiring to

possess with intent to distribute five kilograms or more of cocaine while onboard a

vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C.

§§ 70503(a), 70506(a), (b), and 21 U.S.C. § 960(b)(1)(B)(ii), and possession with

intent to distribute five kilograms or more of cocaine while onboard a vessel

subject to the jurisdiction of the United States, in violation §§ 70503(a), 70506(a),

960(b)(1)(B)(ii), and 18 U.S.C. § 2. Each appellant pleaded guilty to the charges.

I.    Goveo-Zaragoza

      Goveo-Zaragoza was sentenced to 235 months’ imprisonment. On appeal,

he contends that the district court erred in denying him a safety-valve reduction, as

the government did not offer any evidence to demonstrate that his statements and

testimony were not truthful and complete. He also argues that, although he was an

operational officer on the boat, his sentence was unreasonable because many of his

codefendants with “greater or equal culpability” received lesser sentences, and this

constituted cruel and unusual punishment. Finally, Goveo-Zaragoza contends that

he was subjected to cruel and unusual punishment, in violation of the Eighth



                                           5
Amendment, because officials deprived him of his heart medication for four days.

      A.     Safety-valve relief

      We review a district court’s safety-valve fact-finding for clear error. United

States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). Under the safety-valve

provision, a district court shall impose a sentence without regard to any statutory

mandatory minimum if a defendant convicted of certain drug crimes satisfies

certain criteria established in U.S.S.G. § 5C1.2. Section 5C1.2(a) “requires a

defendant to both truthfully and fully disclose information within [his] knowledge

relating to the crime for which [he] is being sentenced.” United States v. Figueroa,

199 F.3d 1281, 1283 (11th Cir. 2000).

      After reviewing the record, we conclude that the district court did not clearly

err by failing to grant Goveo-Zaragoza a two-level safety-valve reduction because

it found that he withheld information regarding how much he knew about the scope

of the common scheme and how much compensation he would receive for his role

in the criminal activity.

      B.     Reasonableness

      The Supreme Court has explained that the substantive reasonableness of a

sentence is reviewed under an abuse-of-discretion standard. Gall v. United States,

552 U.S. ___, ___, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). The district



                                          6
court must consider the following factors to determine a reasonable sentence:

      (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) the need to
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S.C.

§ 3553(a)). While the district court must consider the § 3553(a) factors, it is not

required to discuss each factor. Id.

      We have declined to review a claim that a sentence constituted cruel and

unusual punishment when the argument was not raised in the district court. See

United States v. Sanchez, 138 F.3d 1410, 1417 (11th Cir. 1998). Nevertheless, we

generally review a constitutional challenge to a sentence not raised in the district

court for plain error. United States v. Swatzie, 228 F.3d 1278, 1281 (11th Cir.

2000). To correct plain error, we first must find (1) error, (2) that is plain, and (3)

that affects substantial rights. “If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.

                                            7
Ct. 1544, 1548-49 (1997)).

      “In non-capital cases, the Eighth Amendment encompasses, at most, only a

narrow proportionality principle.” United States v. Brant, 62 F.3d 367, 368 (11th

Cir. 1995). We “must make a threshold determination that the sentence imposed is

grossly disproportionate to the offense committed, and if it is grossly

disproportionate, the court must then consider the sentences imposed on others

convicted in the same jurisdiction and the sentences imposed for commission of the

same crime in other jurisdictions.” United States v. Reynolds, 215 F.3d 1210, 1214

(11th Cir. 2000).

      We conclude from the record that Goveo-Zaragoza’s sentence was

substantively reasonable because, despite the fact that he received a higher

sentence than some of his codefendants, he was not similarly situated to those

codefendants. Further, his sentence did not constitute cruel and unusual

punishment because, based on his role as an operation officer, as well as the

historic amount of cocaine involved and the severity of the offense in this regard, it

cannot be said that his sentence was “grossly disproportionate” to the offense.

      C.     Cruel and unusual punishment

      Deliberate indifference to a prisoner’s serious medical needs violates the

Eighth Amendment. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). This



                                           8
is a constitutional tort, which is properly brought through a 42 U.S.C. § 1983 cause

of action, and not on direct appeal. See Anderson v. City of Atlanta, 778 F.2d 678,

686 n.12 (11th Cir. 1985). Because Goveo-Zaragoza attempts to raise this claim

on direct appeal, as opposed to a proper § 1983 action, we will not consider the

claim. See id.

II.   Estrada-Escobedo

      Estrada-Escobedo was sentenced to 151 months’ imprisonment. On appeal,

he first appears to contend that he should have received a minor-role reduction, as

the court should have taken into account the fact that he did not have any decision-

making authority, did not plan or organize the offense, and was only a

“rudimentary” participant. He also argues that his sentence was unreasonable,

because he was taken into custody in the United States, and, by no fault of his own,

he became an illegal alien in this country subject to deportation and exposed to

several disparate sentencing and confinement conditions.

      A.     Minor-role reduction

      A district court’s determination of a defendant’s role in an offense

constitutes a factual finding to be reviewed only for clear error. United States v.

De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant bears the

burden of proving, by a preponderance of the evidence, that he is entitled to a



                                           9
mitigating-role reduction. Id. at 939. The guidelines provide for a two-level

reduction for a minor participant, which is defined as a defendant “who is less

culpable than most other participants, but whose role could not be described as

minimal.” U.S.S.G. § 3B1.2 and cmt. (n.5). To determine whether this reduction

applies, a district court first should measure the defendant’s role against the

relevant conduct for which the defendant has been held accountable. De Varon,

175 F.3d at 940-41. The amount of drugs, in particular, is a material consideration

in assessing the defendant’s role, and “may be dispositive–in and of itself–in the

extreme case.” Id. at 943. Further, “when a drug courier’s relevant conduct is

limited to [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.” Id. at 942-43.

      Although, in many cases, this first method of analysis will be dispositive, the

district court also may measure the defendant’s culpability in comparison to that of

other participants in the relevant conduct. Id. at 944-45. Two sub-principles guide

this application of the analysis: (1) the district court should look only to other

participants who are identifiable or discernable from the evidence; and (2) only

those participants who were involved in the relevant conduct attributed to the

defendant may be considered. Id. at 944. “The conduct of participants in any



                                           10
larger criminal conspiracy is irrelevant.” Id.

      Because the record demonstrates that Estrada-Escobedo’s role in the offense

was identical to his relevant conduct, and he failed to show that he was less

culpable than the other crew members in the relevant conduct of transporting the

cocaine, we conclude that the district court did not clearly err by finding that he did

not qualify for a minor-role reduction.

      B.     Reasonableness

      We may review a sentence for procedural or substantive reasonableness. See

Gall, 552 U.S. at ___, 128 S. Ct. at 597; see also United States v. Hunt, 459 F.3d

1180, 1182 n.3 (11th Cir. 2006). Although Estrada-Escobedo preserved his

reasonableness challenge, he did not raise below the specific argument regarding

his status as an illegal alien. Accordingly, review of this argument is for plain

error. See United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). The

Supreme Court has explained that a sentence may be procedurally unreasonable if

the district court improperly calculates the guideline imprisonment range, treats the

guidelines as mandatory, fails to consider the appropriate statutory factors, bases

the sentence on clearly erroneous facts, or fails to adequately explain its reasoning.

Gall, 552 U.S. at __, 128 S. Ct. at 597. “[T]here is a range of reasonable sentences

from which the district court may choose,” and “[a] district court may impose a



                                          11
sentence that is either more severe or lenient than the sentence we would have

imposed.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A court is

free to determine the appropriate weight to be given to each of the § 3553(a)

factors. See United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert.

dismissed, 127 S. Ct. 3040 (2007).

       Because we conclude from the record that the district court correctly

calculated the advisory guideline range and considered the factors enumerated in

§ 3553(a), and Estrada-Escobedo’s sentence was at the bottom of the guideline

range, we hold that the district court imposed a procedurally and substantively

reasonable sentence. Further, Estrada-Escobedo’s argument that the district court

erred by not considering the sentencing disparity between himself and a non-alien

is without merit because a sentencing court is not required to discuss each §

3553(a) factor, and the weight that the court assigned to each factor is within its

discretion. Accordingly, we affirm Estrada-Escobedo’s sentence.

III.   Buesa-Herrera

       Buesa-Herrera was sentenced to 151 months’ imprisonment. On appeal, he

first contends that the district court clearly erred by failing to grant him a two-level

minor-role reduction, as he had no knowledge of the structure of the enterprise or a

clear understanding of the roles of others involved in the conspiracy, and he knew



                                           12
only a few hours before that he would be loading cocaine onto a ship. He also

argues that his sentence was arbitrary and procedurally unreasonable because the

district court considered only the amount of drugs involved in the offense, which

determined the guideline range, and it failed to consider the other § 3553(a)

sentencing factors.

      A.     Minor-role reduction

      Because the record indicates that Buesa-Herrera’s role in the offense was

identical to his relevant conduct, and he failed to show that he was less culpable

than the other crew members in the relevant conduct of transporting the cocaine,

we conclude that the district court did not plainly err by finding that he did not

qualify for a minor-role reduction.

      B.     Reasonableness

      Because the record supports the district court’s calculation of the advisory

guideline range, and it shows that the district court adequately considered the

factors enumerated in § 3553(a), we conclude that it imposed a procedurally

reasonable sentence. Accordingly, we affirm Buesa-Herrera’s sentence.

IV.   Camacho-Maldonado

      Camacho-Maldonado was sentenced to 151 months’ imprisonment. On

appeal, he first contends that the district court clearly erred in not granting him a



                                           13
minor-role reduction, as there were “many” other people involved in the

conspiracy who played a far greater role than he did, and he was merely a courier

and the lowest-ranking member of the crew. He also argues that his sentence was

unreasonable, because the district court failed to consider the effect that his

imprisonment will have on his family in Mexico.

      A.     Minor-role reduction

      Because the record demonstrates that Camacho-Maldonado’s role in the

offense was identical to his relevant conduct, and he failed to show that he was less

culpable than the other crew members in the relevant conduct of transporting the

cocaine, we conclude that the district court did not clearly err by finding that he did

not qualify for a two-level minor-role reduction.

      B.     Reasonableness

      Because we conclude from the record that the district court correctly

calculated the advisory guideline range and adequately considered the factors

enumerated in § 3553(a), it imposed a procedurally reasonable sentence.

Accordingly, we affirm Camacho-Maldonado’s sentence.

V.    Cruz-Acosta

      Cruz-Acosta was sentenced to 151 months’ imprisonment. On appeal, he

contends that the district court erred in denying him a minor-role reduction, as the



                                           14
court appeared to have concluded that, in “boat cases,” a defendant is precluded as

a matter of law from receiving this reduction, and the court considered only the

offense itself, without taking into account Cruz-Acosta’s actual role in it. He also

argues that his sentence was procedurally unreasonable because the district court

considered only the quantity of drugs that he transported in determining that he

was not eligible for a minor-role reduction.

      A.     Minor-role reduction

      Because the record demonstrates that Cruz-Acosta’s role in the offense was

identical to his relevant conduct, and he failed to show that he was less culpable

than the other crew members in the relevant conduct of transporting the cocaine,

we conclude that the district court did not plainly err by finding that he did not

qualify for a two-level minor-role reduction.

      B.     Reasonableness

      Because the record demonstrates that the district court correctly calculated

the advisory guideline range and considered the factors enumerated in § 3553(a),

and Cruz-Acosta’s sentence was at the bottom of the guideline range, we conclude

that the district court imposed a procedurally and substantively reasonable

sentence. Accordingly, we affirm Cruz-Acosta’s sentence.

VI.   Valdez-Gonzalez



                                          15
      After entering his guilty plea, Valdez-Gonzalez moved to withdraw the plea,

arguing that he was misinformed by his attorney regarding his options in going to

trial versus pleading guilty. The court denied this motion and subsequently

sentenced Valdez-Gonzalez to 245 months’ imprisonment. On appeal, Valdez-

Gonzalez first argues that his guilty plea was invalid and must be withdrawn,

because his trial counsel was ineffective for failing to assert trial defenses and

improperly advising him about the application of the guidelines, such that his

decision to plead guilty was misinformed. He also contends that the district court

erred in imposing two-level captain enhancement, pursuant to U.S.S.G. §

2D1.1(b)(2)(B), because there was no evidence presented to establish that the

object of the conspiracy was to import or distribute drugs in this country. In other

words, the Government did not show a jurisdictional nexus to the United States.

      A.     Guilty plea

      We review the denial of a request to withdraw a guilty plea for an abuse of

discretion, reversing only if the court’s ultimate conclusion is “arbitrary or

unreasonable.” United States v. Freixas, 332 F.3d 1314, 1316, 1318 (11th Cir.

2003). Pursuant to Fed.R.Crim.P. 11(d), a court may permit a defendant to

withdraw his plea before the court imposes sentence for a “fair and just reason.”

Fed.R.Crim.P. 11(d)(2)(B). In determining whether a defendant has shown a “fair



                                           16
and just reason,” the court evaluates the totality of the circumstances, including:

(1) whether the defendant had close assistance of counsel; (2) whether his plea was

knowing and voluntary; (3) whether judicial resources would be conserved; and

(4) whether the government would be prejudiced by the withdrawal. Freixas, 332

F.3d at 1318 (citing United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988)).

      We conclude from the record here that the district court did not abuse its

discretion in not allowing Valdez-Gonzalez to withdraw his guilty plea because he

did not establish a fair and just reason for the withdrawal. Accordingly, we affirm

Valdez-Gonzalez’s conviction.

      B.     Captain enhancement

      We review a district court’s findings of fact for clear error and its application

of the Sentencing Guidelines de novo. United States v. Cartwright, 413 F.3d 1295,

1298 (11th Cir. 2005), cert. denied, 126 S. Ct. 1116 (2006). The guidelines

provide for a two-level enhancement in a defendant’s offense level “[i]f the

defendant unlawfully imported or exported a controlled substance under

circumstances in which . . . the defendant acted as a pilot, copilot, captain,

navigator, . . . aboard any craft or vessel carrying a controlled substance.”

U.S.S.G. § 2D1.1(b)(2)(B). We have not adopted a rigid definition of the term

“captain,” but rather, look to the facts of each case to determine whether the



                                           17
enhancement was properly applied. See Cartwright, 413 F.3d at 1298. In United

States v. Rendon, 354 F.3d 1320, 1229-31 (11th Cir. 2003), we rejected the

appellant’s arguments that, in order for the captain enhancement to apply, the

controlled substance actually must be imported, and because there was no actual

importation into the United States and no evidence that the cocaine was destined to

be delivered to the United States, the enhancement could not be applied.

      Because Valdez-Gonzalez was the captain of a vessel carrying a controlled

substance that was intended to be unlawfully imported or exported, we conclude

that the district court did not clearly err in applying the captain enhancement here.

Accordingly, we affirm Valdez-Gonzalez’s sentence as well.

VII. Lizarraga-Caceres

      Lizzaraga-Caceres was sentenced to 188 months’ imprisonment. On appeal,

he contends that the district court erred in denying him a mitigating-role reduction,

as he was nothing more than a “mule” here, and the court should have considered

that he: (1) was not going to receive any of the proceeds from the drugs; (2) did not

own or package the drugs: and (3) did not plan the trip or book the vessel.

      Because the record demonstrates that Lizarraga-Caceres’s role in the offense

was identical to his relevant conduct, and he failed to show that he was less

culpable than the other crew members in the relevant conduct of transporting



                                          18
cocaine, we conclude that the district court did not clearly err by finding that he did

not qualify for a mitigating-role reduction. Accordingly, we affirm his sentence.

      For the above-stated reasons, we affirm Valdez-Gonzalez’s conviction and

all of the defendants’ sentences.

      AFFIRMED.




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