           Case: 15-13879    Date Filed: 09/21/2016   Page: 1 of 7


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13879
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:15-cr-00069-SDM-AEP-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

VLADIMIR CASTANEDA,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 21, 2016)



Before JORDAN, JULIE CARNES, and EDMONDSON, Circuit Judges.
              Case: 15-13879    Date Filed: 09/21/2016    Page: 2 of 7


PER CURIAM:



      Vladimir Castaneda appeals his total 235-month sentence, imposed at the

low end of the advisory guideline range, after pleading guilty to one count of

conspiracy to distribute and possess with intent to distribute methamphetamine

(“Count 1”), one count of distribution of 500 grams or more of methamphetamine

(“Count 2”), and one count of possession with intent to distribute

methamphetamine (“Count 3”). On appeal, Castaneda first argues that the district

court erred in failing to award him a minor-role reduction -- pursuant to U.S.S.G. §

3B1.2(b) -- and thereby imposed a procedurally unreasonable total sentence.

Second, Castaneda argues that the court erred in denying his request for a

downward departure, on his criminal history category.



                                         I.



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

offense for clear error. United States v. Rodriguez DeVaron, 175 F.3d 930, 937

(11th Cir. 1999). Further explaining this standard, we made this statement:

       . . . a trial court’s choice between two permissible views of the evidence is
      the very essence of the clear error standard of review. So long as the basis of
      the trial court’s decision is supported by the record and does not involve a
      misapplication of a rule of law, we believe that it will be rare for an

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      appellate court to conclude that the sentencing court’s determination is
      clearly erroneous.

Id. at 945. (citation and quotation omitted) (emphasis in original).

      A district court may decrease a defendant’s offense level by two levels if it

finds the defendant was a “minor participant” in the criminal activity. U.S.S.G. §

3B1.2(b). A “minor participant” is 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, comment. (n.5). “The proponent of the downward adjustment . . . always

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

the evidence.” DeVaron, 175 F.3d. at 939.

      In determining whether a minor-role adjustment applies, the district court

must consider two principles: “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.” Id. at 940. For

the first element of the DeVaron analysis, we have explained that, “[o]nly if the

defendant can establish that [he] played a relatively minor role in the conduct for

which [he] has already been held accountable -- not a minor role in any larger

criminal conspiracy -- should the district court grant a downward adjustment for

minor role in the offense.” Id. at 944.

      For the second element of the DeVaron analysis, we have determined that a

district court should look to other participants only to the extent that they (1) “are
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identifiable or discernable from the evidence,” and (2) “were involved in the

relevant conduct attributed to the defendant.” Id. We have recognized, however,

that the first element set forth in DeVaron may, in many cases, be dispositive. Id.

at 945.

      We review the procedural reasonableness of a sentence under an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597,

169 L. Ed. 2d 445 (2007). However, “the degree of deference that is due varies

with the type of procedural error alleged.” United States v. Ellisor, 522 F.3d 1255,

1273 n.25 (11th Cir. 2008). “A district court abuses its discretion if it applies an

incorrect legal standard, follows improper procedures in making the determination,

or makes findings of fact that are clearly erroneous.” Id. A sentence can be

procedurally unreasonable if the district court makes errors “such as failing to

calculate (or improperly calculating) the 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 --

including an explanation for any deviation from the Guidelines range.” Gall, 552

U.S. at 51, 128 S. Ct. at 597.

      Here, the record supports the district court’s finding that Castaneda was not

entitled to a minor role reduction. Under DeVaron, Castaneda played a substantial

role in the relevant conduct on which he was sentenced. In particular, he


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frequently distributed large quantities of methamphetamine; and during the year

before his arrest, he delivered 10 to 15 pounds of methamphetamine to his co-

conspirator approximately 20 times. Castaneda admitted to participating in the

conspiracy. The district court could have inferred from the totality of the

circumstances that Castaneda played a substantial role in the conspiracy. The

record supports the district court’s finding that Castaneda was no minor participant

relevant to the conduct for which he was held accountable. The district court’s

decision was not clearly erroneous.

      In addition, the district court’s decision not to apply the minor-role reduction

is otherwise supported under DeVaron, even if Castaneda’s culpability is compared

to the other participants. While Castaneda argues that he was the least culpable

person in the conspiracy, that assertion is belied by his uncle’s statement that

Castaneda recruited and paid him to participate in the offense. Furthermore, even

if another co-conspirator (Hendricks) was “the leader and mastermind,” the record

shows that Castaneda knowingly distributed a substantial amount of

methamphetamine over the course of a year. Castaneda appears to be more of an

average participant than a minor player. Even if he was less culpable than another

conspirator, given the evidence of Castanada’s involvement, the district court did

not clearly err in denying Castaneda a minor-role reduction. See DeVaron, 175

F.3d at 944 (“The fact that a defendant’s role may be less than that of other


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participants engaged in the relevant conduct may not be dispositive of role in the

offense, since it is possible that none are minor participants”).

      Second, the court did not abuse its discretion and impose a procedurally

unreasonable sentence. The court did not err in calculating Castaneda’s guideline

range, properly determining that he did not qualify for a minor role reduction.

Nothing indicates that the court treated the Guidelines as mandatory, failed to

consider the § 3553(a) factors, selected a sentence based on clearly erroneous facts,

or failed to adequately explain the chosen sentence. See Gall, 552 U.S. at 51, 128

S. Ct. at 597. Castaneda’s sentence was not procedurally unreasonable. See id.



                                          II.



      If reliable information indicates that a defendant’s criminal history category

substantially over-represents the seriousness of the defendant’s criminal history or

the likelihood that the defendant will commit other crimes, a downward departure

may be warranted. U.S.S.G. § 4A1.3(b)(1). In general, however, a defendant may

not appeal a district court's refusal to depart downward. United States v. Fossett,

881 F.2d 976, 979 (11th Cir. 1989). A defendant may appeal the court's failure to

depart downward on the ground that the court erroneously believed it lacked the

authority to depart, but this Court will assume that the district court understood it


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had authority to depart downward where nothing indicates that it misapprehended

its authority. United States v. Hansen, 262 F.3d 1217, 1255 (11th Cir. 2001).

Further, issues not briefed on appeal are generally deemed abandoned. Carmichael

v. Kellogg, Brown, & Root Serv., Inc., 572 F.3d 1271, 1293 (11th Cir. 2009).

      There is no indication in the record that the district court misapprehended its

authority to depart downward. So as we see it, the court was authorized to depart

downwardly; and the sentencing court concluded that such a departure was

unwarranted because Castaneda’s criminal history did not merit such treatment

under § 4A1.3(b)(1). This decision is not reviewable.

      AFFIRMED.




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