           Case: 19-11335   Date Filed: 03/31/2020   Page: 1 of 4



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11335
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:18-cr-00511-SDM-JSS-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

FRANKLIN RAFAEL LOPEZ TOALA,

                                                         Defendant-Appellant.

                      ________________________

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

                            (March 31, 2020)

Before WILLIAM PRYOR, MARTIN and LAGOA, Circuit Judges.

PER CURIAM:
               Case: 19-11335     Date Filed: 03/31/2020     Page: 2 of 4



      Franklin Rafael Lopez-Toala appeals his sentence of 108 months of

imprisonment for conspiring to possess and for possessing with intent to distribute

five kilograms or more of a mixture and substance containing a detectable amount

of cocaine while aboard a vessel subject to United States jurisdiction. 21 U.S.C.

§ 960(b)(1)(B)(ii); 46 U.S.C. §§ 70503(a), 70506(a), (b). Lopez-Toala challenges

the denial of his request for a reduction for a minor role and the substantive

reasonableness of his sentence. We affirm.

      The district court did not clearly err by denying Lopez-Toala a minor role

reduction. A defendant may obtain a two-level reduction of his offense level if the

facts establish that he “is less culpable than most other participants, but [his] role

could not be described as minimal,” United States Sentencing Guidelines Manual

§ 3B1.2(b) & cmt. n.5 (2018), and his “part in committing the offense . . . makes

him substantially less culpable than the average participant in the criminal

activity,” id. § 3B1.2 cmt. 3(A). The facts in Lopez-Toala’s presentence

investigation report, to which he did not object, support the findings of the district

court that his role was not minor and that he was no less culpable than most of his

crewmates. See United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“[A]

failure to object to allegations of fact in a PSI admits those facts for sentencing

purposes.”). Lopez-Toala and his two crewmates received $5,000 in advance to

transport 331 kilograms of cocaine from Ecuador to Mexico. Lopez-Toala shared


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responsibility with Ramon Zambrano to relieve the pilot, Eddy Mera. Lopez-Toala

also shared in whatever tasks were required to make the voyage successful and

obtain additional compensation, and he assisted Mera in throwing the cargo

overboard when the Coast Guard disabled the boat. That Mera expected more

compensation than his crewmates after they completed delivery of the cocaine and

that he possibly shouldered more responsibility as the pilot did not make Lopez-

Toala’s role minor. See United States v. Valois, 915 F.3d 717, 732 (11th Cir.), cert.

denied, 140 S. Ct. 263 (2019). Lopez-Toala played a key role in ensuring that the

conspiracy delivered the cocaine.

      The district court also did not abuse its discretion when it sentenced Lopez-

Toala to two concurrent terms at the low end of his advisory guidelines range of

108 to 135 months of imprisonment. The district court reasonably determined that

sentences of 108 months were necessary to punish Lopez-Toala for his role in the

“large-scale transoceanic importation of a large quantity of high-purity cocaine”

and for endangering law enforcement who had to use deadly force to intercept the

boat and to recover packages of drugs from the ocean, to prevent Lopez-Toala

from committing similar future crimes, and to protect the public from the danger

created by the importation of illegal drugs. See 18 U.S.C. § 3553(a)(1), (2). And

the district court verified that Lopez-Toala’s sentence was consistent with those

imposed on other crewmen. See id. § 3553(a)(6). The district court also reasonably


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decided that the “especially serious” nature of Lopez-Toala’s offense outweighed

his arguments for a lesser sentence based on his background in the military, recent

unemployment, lack of a criminal history, and familial financial obligations. See

United States v. Amedeo, 487 F.3d 823, 832–33 (11th Cir. 2007). Lopez-Toala’s

sentence, which is well below his maximum statutory penalty of imprisonment for

life, is reasonable. See United States v. Dougherty, 754 F.3d 1353, 1362 (11th Cir.

2014).

      We AFFIRM Lopez-Toala’s sentence.




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