United States v. Unsalegongora
United States v. Unsalegongora
Opinion of the Court
Appellant Andre Abelino Unsalegongora
In May 2005, the United States Navy ship Rentz (“the Rentz”) was patrolling in the Eastern Pacific Ocean. A helicopter dispatched from the Rentz spotted a vessel
On appeal, Abelino argues that the district court erred in not granting him a mitigating role reduction. He claims that he was just “a common man,” and did not have any equity interest in the cocaine that was found on the OFY. He maintains he did not plan or organize the conspiracy, lacked knowledge of the scope of the offense, had no supervisory authority, did not make any material decisions with regard to the transportation of the cocaine, did not have any control over the cocaine, did not profit from the conspiracy, and did not possess a firearm for authority or security purposes. In support, Abelino relies on the district court’s and other circuits’ case law. He also claims that he was less culpable than “the other co-conspirators on board the vessel such as the captain and the vessel’s owner’s drug representative and guard.”
We have “long and repeatedly held that a district court’s determination of a defendant’s role in the offense is a finding of fact to be reviewed only for clear error.”
A defendant who is a minimal participant is one who is plainly among the least culpable of those involved in the conduct of a group. U.S.S.G. § 3B1.2, comment, (n.4). A defendant is a minor participant if he is less culpable than most other participants, but whose role can not be described as minimal. U.S.S.G. § 3B1.2, comment, (n. 5). In determining a defendant’s mitigating role in the offense, the district court “must measure the defendant’s role against the relevant conduct for which [he] was held accountable at sentencing ... [and] may also measure the defendant’s role against the other participants to the extent they are discernable in the relevant conduct.” De Varon, 175 F.3d at 945. “The defendant bears the burden of proving his minor role by a preponderance of the evidence.” United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002). Where a drug courier’s relevant conduct is limited to his own criminal act, a district court may legitimately conclude that the courier played an important and essential role in that crime. See De Varon, 175 F.3d at 942-43. Furthermore, “the amount of drugs imported is a material consideration in assessing a defendant’s role in [his] relevant conduct.” See id. at 943. “[W]here the relevant conduct attributed
Here, the record supports the district court’s finding that Abelino’s role in the relevant offense was neither minor nor minimal. With respect to the first prong of the De Varon analysis, at sentencing, Abelino was held accountable only for the 4,300 kilograms of cocaine, a very large amount, which was the amount that the OFY was transporting. Thus, Abelino’s actual and relevant conduct were the same, and, as such, the district court’s ruling was not clearly wrong.
With respect to the second prong of the Be Varón analysis, there is insufficient evidence to show that Abelino was a minor or minimal participant in comparison to others. Here, the only persons identifiable from the evidence are Abelino, the other six crew members, and Portocarrero, the captain of the vessel. Abelino has provided no evidence that he was less culpable than the other six crew members of the OFY, or that his responsibilities aboard the OFY were less vital to the enterprise than those of any of the other crew members. Abelino tries to distinguish himself from Portocarrero, arguing that his role in the offense was less important than Portocarrero’s. However, Portocarrero received a two-level enhancement pursuant to U.S.S.G. § 2Dl.l(b)(2)(B) because he was the captain of the OFY. The case law that Abelino cites is not binding on this Court
AFFIRMED.
. Although the appellant was indicted and prosecuted under the last name "Unsalengongora,” his real name is "Gonzalez-Gongora.”
. In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court excised 18 U.S.C. § 3742(e), which established standards of review on appeal. However, this Court has held that preBooker standards for reviewing application of the Sentencing Guidelines (i.e., findings of fact for clear error, and questions of law de novo) still apply post-Booker. United States v. Crawford, 407 F.3d 1174, 1177-78 (11th Cir. 2005).
. “Under the established federal legal system the decisions of one circuit are not binding on other circuits.” See Minor v. Dugger, 864 F.2d 124, 126 (11th Cir. 1989).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.