USA v. Alberto Pena

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15085
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20061-MGC-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 31, 2013)
Before WILSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
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Alberto Peña appeals his 24-month sentence for possession with intent to
distribute less than 100 kilograms of marijuana, in violation of 21 U.S.C.
§ 841(a)(1). Peña pled guilty to possession with intent to distribute marijuana and
explicitly admitted in his factual proffer that “[t]he total weight of the marijuana
buds was over fifty kilograms,” there were an additional 31 plants, and he
“knowingly possessed with intent to distribute over fifty kilograms of marijuana.”
On appeal, Peña contends the district court erred by (1) relying on the wet, not dry,
weight of the marijuana for sentencing purposes, and (2) finding he was not
entitled to a minor role-reduction based on his argument that, like several
codefendants who received the reduction, Peña was only a harvester. After review,
we affirm Peña’s sentence, but remand for the limited purpose of correcting a
clerical error in the written judgment.
Weight of Marijuana
We review a district court’s factual determination of the quantity of drugs
properly attributable to a defendant for clear error. United States v. Rodriguez, 398
F.3d 1291, 1296 (11th Cir. 2005). When a defendant objects to a factual finding
that the district court used in calculating his sentence, such as a drug amount, “the
government bears the burden of establishing the disputed fact by a preponderance
of the evidence.” Id. “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,
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undisputed statements in the presentence report, or evidence presented at the
sentencing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.
1989).
The district court did not clearly err in its determination that Peña was
responsible for 50 to 60 kilograms of marijuana. Peña filed a factual proffer in
which he expressly admitted he knowingly possessed with intent to distribute over
50 kilograms of marijuana. See Wilson, 884 F.2d at 1356. Prior to taking Peña’s
plea, the district court asked him if he still wanted to enter a plea knowing its
determination as to the weight of marijuana. Peña elected to continue with his
plea knowing it included a stipulation to the weight of the marijuana, and allowed
the Government to provide his signed plea agreement and factual proffer to the
court. Thus, Peña admitted to possession of more than fifty kilograms of
marijuana and cannot now contest that amount.
Minor-Role Reduction
We review the district court’s determination of whether a defendant qualifies
for a minor-role adjustment under the Guidelines 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 his role was minor. Id.
at 939. Section 3B1.2(b) of the Sentencing Guidelines provides that, if the
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defendant was only a minor participant in the criminal activity, his total offense
level is decreased by two levels. U.S.S.G. § 3B1.2(b).
The district court’s determination that Peña was not entitled to a minor-role
reduction was not clearly erroneous. Peña was held accountable only for the
marijuana found in the grow house that he admitted to possessing with an intent to
distribute; therefore, his role was not minor in relation to the relevant conduct for
which he was held accountable. See De Varon, 175 F.3d at 941 (“[T]he district
court must assess whether the defendant is a minor or minimal participant in
relation to the relevant conduct attributed to the defendant in calculating [his] base
offense level.”). Moreover, Peña did not establish that he was less culpable than
the other participants in the conspiracy. See id. at 944 (“[T]he district court must
determine that the defendant was less culpable than most other participants in [his]
relevant conduct.”). Although Peña claims he was only as culpable as the
codefendants who received a minor-role reduction for being harvesters, the record
supports the district court’s conclusion that Peña was engaged in more activity
benefitting the conspiracy than his codefendants.
Clerical Error
“We may sua sponte raise the issue of clerical errors in the judgment and
remand with instructions that the district court correct the errors. See United States
v. Massey, 443 F.3d 814, 822 (11th Cir. 2006).” Here, the judgment correctly lists
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the offense of conviction as Count “2,” but incorrectly describes the offense as
conspiracy to possess with intent to distribute less than 100 kilograms of
marijuana, in violation of 21 U.S.C. § 846. Count Two of the indictment charged
Peña with possession with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1), and the plea agreement is clear that Peña intended to plead guilty to
Count Two. Accordingly, we remand for the limited purpose of correcting the
clerical error.
AFFIRMED IN PART, REMANDED IN PART FOR CORRECTION
OF CLERICAL ERROR IN JUDGMENT.
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