                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            NOV 22, 2006
                             No. 06-11873                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 05-00411-CR-T-27-TGW

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

IVAN ARLES ARDILA-RENGIFO,

                                                         Defendant-Appellant.


                       ________________________

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

                           (November 22, 2006)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Ivan Arles Ardila-Rengifo pled guilty to possession with the intent to

distribute 5 kilograms or more of cocaine, in violation of 46 App. U.S.C. § 1903(a)

and (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to possess

with the intent to distribute 5 kilograms or more of cocaine while aboard a vessel

subject to United States jurisdiction, in violation of 46 App. U.S.C. § 1903(a), (g),

and (j), and 21 U.S.C. § 960(b)(1)(B)(ii). The district court sentenced

Ardila-Rengifo to 144 months’ imprisonment. Ardila-Rengifo raises two issues on

appeal: (1) the district court erroneously found that he was the captain of the vessel

and thus improperly enhanced his sentence on that ground; and (2) his sentence

was unreasonable. For the reasons set forth more fully below, we affirm.

                                   I. Background

      The United States Coast Guard (“USCG”) located a “go-fast” vessel in the

Eastern Pacific Ocean and compelled the vessel to stop, using warning shots. The

USCG then boarded the vessel, which they deemed to be without nationality, and

found 99 bales of cocaine, weighing 1,588 kilograms. Four crew members of

Colombian nationality, including Ardila-Rengifo, manned the vessel, but none of

the crew admitted to being the captain. After their arrests, several of the crew

members stated that Ardila-Rengifo was the captain, but that they each took turns

navigating the vessel. At his plea hearing, Ardila-Rengifo admitted that he knew



                                           2
that the boat he boarded was carrying drugs and that the purpose of the boat trip

was to deliver cocaine. He further stated that he was to be paid a total of 130

million pesos for his participation in the trip and that he had received 55 million

pesos before the trip began.

      A probation officer prepared a presentence investigation report (“PSI”) and,

based upon Ardila-Rengifo’s offense conduct, assigned a base offense level of 38,

pursuant to U.S.S.G. § 2D1.1(c)(1), because Ardila-Rengifo’s offenses involved

more than 150 kilograms of cocaine. Additionally, the probation officer found that

Ardila-Rengifo was the captain of the go-fast vessel and thus increased his base

offense level by two, pursuant to U.S.S.G. § 2D1.1(b)(2)(B). After applying

reductions to Ardila-Rengifo’s offense level based upon Ardila-Rengifo’s

acceptance of responsibility and his eligibility for safety-valve relief under

U.S.S.G. §§ 2D1.1(b)(7) and 5C1.2, the probation officer recommended a total

adjusted offense level of 35. With an offense level of 35, and a criminal history

category of I, Ardila-Rengifo’s guideline range was 168 to 210 months’

imprisonment. His statutory maximum sentence was life imprisonment.

      At sentencing, Ardila-Rengifo admitted all the facts as presented in the PSI,

but argued that those facts did not establish that he was the captain of the vessel.

The government responded that Ardila-Rengifo was the captain of the vessel



                                           3
because (1) the other crew members made post-arrest statements that

Ardila-Rengifo was the captain, (2) he received 130 million pesos for his

participation in the trip and the other crew members received only 40 million

pesos, and (3) he admitted in his post-arrest statement that he was given

navigational charts, coordinates, GPS receivers, two radios, paper instructions, and

codes before beginning the trip. The court gave Ardila-Rengifo’s counsel an

opportunity to respond to the government’s arguments, but counsel declined and

relied only on his initial statements.

      Based upon Ardila-Rengifo’s possession of navigational equipment and the

premium pay that he received for the trip, the court overruled Ardila-Rengifo’s

objection to the two-level captain enhancement. In imposing Ardila-Rengifo’s

sentence, the court noted that it had considered the factors set forth in 18 U.S.C.

§ 3553(a). The court further indicated that,

      A 14-year sentence for a 22-year-old man is more than is necessary to
      effect the statutory purposes of sentencing. This defendant has pled
      guilty, accepted responsibility. He comes from a country with an
      economic environment which is nothing short of hopeless. The greed
      part entitles him to a long sentence. There’s no question about that.
      He comes from a culture that few of us in this country can even begin
      to appreciate and understand. He was the captain. He is entitled and
      deserves a longer sentence than the other crew members. . . . Having
      considered all of these matters, it is the finding of the court that a
      sentence within the guideline range is more than necessary to achieve
      the statutory purposes of sentencing . . . .



                                           4
Thus, the court sentenced Ardila-Rengifo to 144 months’ imprisonment, 24 months

below the low-end of his guideline range and below his statutory maximum of life

imprisonment.

                                    II. Discussion

                            A. U.S.S.G. § 2D1.1(b)(2)(B)

      Ardila-Rengifo argues on appeal that the district court erred in applying the

two-level captain enhancement and in relying on the government’s arguments at

sentencing that were not supported by the record. Specifically, he contends that

there was no evidence to support the government’s arguments that he was provided

with navigational equipment or that he earned more money for his participation in

the drug trip than did the other crew members. He further notes that there was no

evidence establishing that he: (1) had a license to be a captain; (2) piloted the boat;

(3) was listed as the captain; (4) identified himself as the captain; or (5) had the

authority to instruct other crew members.

      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). However, where a

defendant raises a sentencing argument for the first time on appeal, we review for

plain error. United States v. Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005). Under



                                            5
plain error review, there must be (1) an error, (2) that is plain, and (3) that affects

substantial rights. Id. at 1328-29. If these three prongs are met, we may exercise

our discretion to notice the error if it seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Id. at 1329.

       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, we look to the facts of each case to determine whether the

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

Cartwright, we upheld a captain enhancement where the defendant: (1) admitted he

was a lifelong fisherman; (2) drove the boat at times; (3) followed directions on

where to steer the boat; and (4) used a compass to navigate. Id. at 1299. We

determined that the fact that other crew members also steered the boat did not

negate Cartwright’s enhancement because § 2D1.1(b)(2)(B) specifically included

“copilots.” Id. Moreover, it was not dispositive that Cartwright was not officially

named the captain. Id.

       The crux of the issue on appeal here is whether the district court erred in



                                             6
relying on the facts that were presented only in the government’s proffer, and, if

so, whether the remaining facts to which Ardila-Rengifo admitted were alone

sufficient to support the enhancement. As to whether the court erred in relying on

the government’s proffer, Ardila-Rengifo raises that issue for the first time on

appeal, and, thus, we review it for plain error. Shelton, 400 F.3d at 1328. The

court’s reliance on the government’s assertions in this case is analogous to the

situation where a court permissibly relies on undisputed facts in the PSI. See

Fed.R.Crim.P. 32(i)(3)(A) (a sentencing court “may accept any undisputed portion

of the presentence report as a finding of fact”); see also United States v. Wilson,

884 F.2d 1355, 1356 (11th Cir. 1989) (“The findings of fact of the sentencing court

may be based on evidence heard during trial, facts admitted by a defendant’s plea

of guilty, undisputed statements in the presentence report, or evidence presented at

the sentencing hearing”). The district court is obligated to resolve disputed issues,

but here, Ardila-Rengifo did not dispute the government’s factual assertions. See

Fed.R.Crim.P. 32(i)(3)(B). In other words, Ardila-Rengifo did not express in any

way that the government’s factual assertions as presented through its proffer were

inaccurate or unreliable. Therefore, by analogy to a court’s ability to permissibly

rely on undisputed facts in a PSI, the court here did not plainly err in relying on the

government’s undisputed factual assertions. Furthermore, it is noteworthy that



                                           7
Ardila-Rengifo does not dispute the accuracy of the assertions on appeal, but

argues only that the government did not provide evidence in support of those

assertions.

      Accordingly, the district court properly considered Ardila-Rengifo’s

admissions and the government’s undisputed assertions in applying the captain

enhancement. Given that Ardila-Rengifo was paid significantly more than other

crew members, was provided with navigational equipment before the trip, was

considered the captain by the other crew members, and at times drove the boat,

those circumstances are sufficient to warrant the captain enhancement pursuant to

our precedent. See Cartwright, 413 F.3d at 1298-99. The fact that other crew

members also navigated the boat is not dispositive because § 2D1.1(b)(2)(B)

includes “copilots.” See id. at 1299. Thus, the district court did not clearly err in

enhancing Ardila-Rengifo’s offense level by two for his role as a captain.

                                 B. Reasonableness

      Ardila-Rengifo argues on appeal that his 144-month sentence was

unreasonable despite the court’s consideration of his young age, background, and

history. He further asserts that his sentence was unreasonable because the court

did not consider: (1) his lack of a criminal history, an education, and money; (2)

his need to raise money for his child and father; and (3) the fact that he participated



                                           8
in the drug trip as a way to provide for his family. He maintains that his sentence

was in excess of the minimum necessary to meet the purposes of punishment

required by 18 U.S.C. § 3553(a).

      We review final sentences for reasonableness. United States v. Talley, 431

F.3d 784, 786 (11th Cir. 2006). “Review for reasonableness is deferential.” Id. at

788. “[T]he party who challenges the sentence bears the burden of establishing

that the sentence is unreasonable in light of both [the] record and the factors in

section 3553(a).” Id.

      Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005), we held that, in imposing a sentence, the district court must

first accurately calculate the defendant’s guideline range and second consider the

§ 3553(a) factors to determine a reasonable sentence. Id. at 786. Those factors

include, inter alia, (1) the nature and circumstances of the offense, (2) the history

and characteristics of the defendant, (3) the need for the sentence imposed to

reflect the seriousness of the offense, to afford adequate deterrence, and to protect

the public from future crimes of the defendant, and (4) the need to avoid

unwarranted sentencing disparities among defendants with similar histories who

have committed similar conduct. 18 U.S.C. § 3553(a). However, “nothing in

Booker or elsewhere requires the district court to state on the record that it has



                                           9
explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

In reviewing a sentence that was within the guideline range for reasonableness, we

stated that we would “. . . consider the final sentence, in its entirety, in light of the

§ 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)

(citing United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) for the

proposition that “[w]e do not apply the reasonableness standard to each individual

decision made during the sentencing process; rather, we review the final sentence

for reasonableness.”).

       As evidenced by the court’s statements made at sentencing, the court

considered many factors in determining an appropriate sentence for

Ardila-Rengifo, including his personal history, his background, and the

circumstances that led him to commit the offense. Based on those considerations,

the court imposed a 144-month sentence, which was 24 months below the low-end

of his guideline range and significantly lower than his statutory maximum of life

imprisonment. Given the court’s detailed consideration of many factors and its

sentence below the applicable guideline range, Ardila-Rengifo’s argument on

appeal, that the court did not consider his personal and familial history, is simply

without merit. Thus, Ardila-Rengifo has not established on appeal that his



                                            10
sentence was unreasonable.

                                  III. Conclusion

      In light of the foregoing, we conclude that the district court did not clearly

err in enhancing Ardila-Rengifo’s offense level pursuant to U.S.S.G.

§ 2D1.1(b)(2)(B) and that his 144-month sentence was reasonable. Accordingly,

Ardila-Rengifo’s sentence is

      AFFIRMED.




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