USA v. Gernaldo Alfonso Feliz

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13267
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERNALDO ALFONSO FELIZ,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20171-JEM-2
____________________
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2 Opinion of the Court 21-13267
Before LAGOA , BRASHER , and TJOFLAT, Circuit Judges.
PER CURIAM:
Gernaldo Alfonso Feliz appeals his 108-month sentence im-
posed after he pled guilty to conspiracy to possess with intent to
distribute five kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States. On appeal, he ar-
gues that his sentence is procedurally and substantively unreason-
able. First, he argues that the District Court improperly applied a
two-level enhancement under U.S.S.G. § 3C1.2 for the reckless en-
dangerment of another person during flight and failed to reduce his
offense level under U.S.S.G. § 3B1.2 for the minor role he played in
the broader cocaine smuggling conspiracy. Second, he argues that
the District Court failed to consider his personal history and char-
acteristics or make findings sufficient to justify his sentence.
I.
In February 2021, Feliz and his codefendant piloted a go-fast
vessel from the Dominican Republic to Columbia for the purpose
of smuggling cocaine. After retrieving 72 kilograms of cocaine from
Columbia, Feliz and his codefendant began their return to the Do-
minican Republic. On their trip back, Feliz spotted a plane over-
head and alerted his codefendant, who started tossing the contra-
band overboard.
The United States Coast Guard (“USCG”) quickly launched
a helicopter to intercept the vessel. After USCG members saw
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21-13267 Opinion of the Court 3
individuals throwing packages overboard, the order was given to
fire warning shots. Feliz ignored these warning shots and contin-
ued to flee. USCG members then resorted to firing disabling shots
at the boat’s engine, which caused the boat to stop. USCG boarded
the vessel, determined the vessel was subject to the jurisdiction of
the United States, and detained Feliz and his codefendant.
On July 8, 2021, Feliz pled guilty pursuant to a written plea
agreement to one count of conspiracy to possess with intent to dis-
tribute five kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States. The probation of-
fice assigned Feliz a base offense level of 34. The probation office
then applied an additional two-levels, pursuant to § 2D1.1(b)(3)(C),
because Feliz acted as a captain aboard a vessel carrying a con-
trolled substance and added another two-levels, pursuant to §
3C1.2, because Feliz recklessly created a substantial risk of death or
serious bodily injury while fleeing law enforcement. After the ap-
plication of a three-level reduction for his acceptance of responsi-
bility, Feliz’s total offense level was 35.
Feliz had zero criminal history points, which placed him in
a criminal history category of I. Based on his offense level of 35 and
a criminal history category of I, Feliz was assigned a guidelines sen-
tence range of 168 to 210 months’ imprisonment with a ten-year
minimum mandatory.
Feliz made several objections to the probation office’s
presentence report. First, Feliz objected to the two-level enhance-
ment for reckless endangerment. Feliz argued that the
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4 Opinion of the Court 21-13267
enhancement should not apply because his codefendant was a will-
ing participant and there were no other boats in the water. Next,
Feliz objected to the two-level increase for acting as a captain and
the failure to reduce his offense level by two levels for meeting the
safety valve criteria in U.S.S.G § 5C1.2(a)(5). Lastly, Feliz objected
to the probation office’s failure to apply a two-level reduction for
his minor role in the offense. Feliz argued that he was being held
responsible for the entire quantity of the drugs, and the court
should look at the unindicted co-conspirator’s conduct to deter-
mine whether his role was minor.
Prior to sentencing, the government did not object to Feliz’s
objection to the two-level increase for acting as a captain, pursuant
to § 2D1.1(b)(3)(C). Moreover, the government agreed that Feliz
qualified for the safety valve provision. The government, how-
ever, did argue that Feliz did not qualify for the minor role reduc-
tion. The government stressed that Feliz’s attempt to point to his
minor role in a larger conspiracy was irrelevant because Feliz was
not being held accountable for the broader conspiracy. Addition-
ally, the government argued that the reckless endangerment en-
hancement was warranted because USCG operations inevitably
create risk.
At sentencing, the District Court noted that it had reviewed
the plea agreement, the presentence report, and objections to the
presentence report. At this time, Feliz brought forth his unresolved
objections to his calculated offense level. The District Court over-
ruled Feliz’s objection with respect to the minor role reduction,
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21-13267 Opinion of the Court 5
stressing that neither Feliz nor his codefendant were minor partic-
ipants. Next, Felix brought forth his objection to the reckless en-
dangerment enhancement. Felix argued that the enhancement
was inapplicable because his codefendant did not qualify as “an-
other person” as he was a willing participant in the flight. In re-
sponse, the government stressed that Feliz’s decision to flee endan-
gered USCG members on board the helicopter because they had to
reposition the helicopter in order to fire warning and disabling
shots. Siding with the government, the District Court overruled
Feliz’s objection. After resolving all objections—including the re-
moval of the two-level captaincy enhancement—Feliz had an of-
fense level of 31 with a guidelines sentence range of 108 to 135
months.
The government recommended a sentence around 108
months, noting that Feliz engaged in a high-speed chase that re-
sulted in warning and disabling fire, which proved Feliz knew what
he was doing was wrong. In response, Feliz requested the court to
vary downward from the guidelines range due to his poor living
conditions and third grade level education. Moreover, Feliz argued
his sentence should be comparable to his codefendant’s sentence
because both parties had operated the boat, but he happened to be
driving when the USCG arrived.
After considering the statements of all parties, the presen-
tence report, and the 18 U.S.C § 3553(a) factors, the District Court
found that Feliz met the criteria for the safety valve provision. As
a result, the Court explained it would impose a sentence in
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6 Opinion of the Court 21-13267
accordance with the advisory guidelines and without regard to any
statutory minimum sentence. The Court then imposed a 108-
month sentence, explaining that “[a] sentence at the low end of the
guidelines range would provide just punishment and adequate de-
terrence to criminal conduct.”
II.
When reviewing a sentence for reasonableness, we utilize a
two-step process, in which we first ensure that the district court
committed no significant procedural error, such as improperly cal-
culating the guidelines range.
United States v. Trailer, 827 F.3d
933, 935–936 (11th Cir. 2016). This Court “review[s] a district
court’s interpretation of the Sentencing Guidelines and application
of the Guidelines to the facts
de novo, and [it] review[s] the district
court’s findings of fact for clear error.”
United States v. Dimitrov-
ski, 782 F.3d 622, 628 (11th Cir. 2015). We have held that a district
court’s determination of a defendant’s role is a finding of fact and
subject to clear error review.
United States v. De Varon, 175 F.3d
930, 937 & n.3 (11th Cir. 1999) (
en banc). A finding of fact is clearly
erroneous if, after reviewing all of the evidence, we are left with a
“definite and firm conviction” that a mistake has been made.
United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015).
After determining that a district court’s sentencing decision
is procedurally sound, we then consider the substantive reasona-
bleness of the sentence.
Gall v. United States, 552 U.S. 38, 51, 128
S. Ct. 586, 597 (2007). When reviewing for substantive reasonable-
ness, we consider the totality of the circumstances under a
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21-13267 Opinion of the Court 7
deferential abuse-of-discretion standard.
Id. The party challenging
the sentence bears the burden of establishing that it is unreasonable
based on the facts of the case and the § 3553(a) factors.
United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Under an abuse-of-discretion standard, we may vacate the
sentence only if we are left with the definite and firm conviction
that the district court committed a clear error of judgment in
weighing the U.S.C. § 3553(a) factors to arrive at an unreasonable
sentence based on the facts of the case.
United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (
en banc). The district court must
issue a sentence “sufficient, but not greater than necessary” to com-
ply with the purposes of U.S.C. § 3553(a)(2), which include the
need for a sentence to provide just punishment and deter criminal
conduct. 18 U.S.C. § 3553(a).
A.
First, Feliz argues that his sentence is procedurally unreason-
able because the District Court applied a two-level enhancement
for reckless endangerment and failed to remove two-levels from
his guideline offense level for his minor role in the drug smuggling
conspiracy.
A defendant’s offense level should be increased by two levels
if the defendant “recklessly created a substantial risk of death or
serious bodily injury to another person in the course of fleeing
from a law enforcement officer.” U.S.S.G. § 3C1.2. According to
the commentary, “reckless” means “a situation in which the
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defendant was aware of the risk created by his conduct and the risk
was of such a nature and degree that to disregard that risk consti-
tuted a gross deviation from the standard of care that a reasonable
person would exercise in such a situation.”
See id. § 3C1.2, com-
ment. (n.2) (cross-referencing U.S.S.G. § 2A1.4, comment. (n.1)).
Further, “‘[a]nother person’ includes any person, except a partici-
pant in the offense who willingly participated in the flight.”
Id.
§ 3C1.2, comment. (n.4). To determine whether a “substantial risk
of death or serious bodily injury” exists, § 3C1.2 “requires only that
there was a substantial risk that something could have gone wrong
and someone could have died or been seriously injured,” and con-
duct that could potentially harm a law enforcement officer is suffi-
ciently reckless.
Matchett, 802 F.3d at 1198. However, “flight
alone is insufficient to warrant an enhancement under this sec-
tion.”
United States v. Wilson, 392 F.3d 1243, 1247 (11th Cir. 2004).
The Guidelines provide for a two-level reduction to a de-
fendant’s guidelines offense level if he was a minor participant in
the offense. U.S.S.G. § 3B1.2(b). “A minor participant is someone
who is less culpable than most other participants, but whose role
could not be described as minimal.”
United States v. Martin, 803
F.3d 581, 591 (11th Cir. 2015) (quotation marks omitted). Deter-
mining if a defendant played a minor role in the offense is a fact-
intensive inquiry, and the sentencing court should assess the total-
ity of the circumstances, “where no one factor is more important
than another.”
United States v. Cruickshank, 837 F.3d 1182,
1195 (11th Cir. 2016) (quotation marks omitted) (determining that
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21-13267 Opinion of the Court 9
the district court erred in only considering the drug quantity in-
volved in the defendant’s offense). The defendant has the burden
of proving his mitigating role in the offense by a preponderance of
the evidence.
De Varon, 175 F.3d at 939.
In determining whether the defendant played a minor role,
the district court should consider: “(1) the defendant’s role in the
relevant conduct for which he has been held accountable for at sen-
tencing; and (2) his role compared to that of the other participants
in his relevant conduct.”
Cruickshank, 837 F.3d at 1192. With re-
spect to the defendant’s relevant conduct, “the district court must
assess whether the defendant is a minor or minimal participant in
relation to the relevant conduct attributed to the defendant in cal-
culating [his] base offense level.”
De Varon, 175 F.3d at 941. A
defendant is not entitled to a mitigating role adjustment when he
can point to a broader criminal scheme that he was a minor partic-
ipant in but was not held accountable for.
Id. The district court
may only consider other discernable participants who were in-
volved in the relevant conduct attributed to the defendant.
Martin,
803 F.3d at 591.
Additionally, the district court should consider these factors
when determining whether a defendant qualifies for a minor role
reduction: (1) the defendant’s degree of understanding of the struc-
ture and scope of the criminal activity; (2) the defendant’s degree
of participation in the organization and planning of the criminal ac-
tivity; (3) the defendant’s degree of decision-making authority or
influence over the decision-making authority; (4) the defendant’s
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10 Opinion of the Court 21-13267
nature and extent of participation in the criminal activity, including
his actions and his responsibility and discretion in performing those
actions; and (5) how much the defendant “stood to benefit” from
the activity.
United States v. Presendieu, 880 F.3d 1228, 1249-50
(11th Cir. 2018) (quotation marks omitted); U.S.S.G. § 3B1.2, com-
ment. (n.3(C)).
Here, Feliz’s sentence is not procedurally unreasonable.
First, the District Court did not clearly err in finding that Feliz’s
codefendant was not an active participant in flight or in finding that
Feliz recklessly endangered pursuing USCG personnel during
flight. The boat——piloted by Feliz—did not stop until USCG
members fired disabling shots from a helicopter. Accordingly, the
District Court did not clearly err in finding that Feliz recklessly en-
dangered another individual.
Second, the District Court did not clearly err in finding that
Feliz was not entitled to a minor role reduction. Feliz was held
responsible for possessing cocaine aboard a boat, not for the
broader cocaine smuggling conspiracy. And the record supports
that Feliz and his codefendant played similar roles in transporting
the cocaine aboard. As such, the District Court did not err in refus-
ing to provide Feliz with a minor role reduction.
B.
Next, Feliz argues that his sentence is substantively unrea-
sonable because the District Court failed to give weight to his per-
sonal history and characteristics.
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“[T]he weight given to any § 3553(a) factor is a matter com-
mitted to the discretion of the district court.”
United States v. Wil-
liams, 526 F.3d 1312, 1322 (11th Cir. 2008). The court need not
specifically discuss each § 3553(a) factor so long as the record re-
flects that the court considered those factors.
United States v.
Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010). Moreover, if a sen-
tence imposed is below the statutory maximum, that is a factor in-
dicating that the sentence is reasonable.
United States v. Hunt, 941
F.3d 1259, 1264 (11th Cir. 2019). However, “[a] district court abuses
its discretion when it fails to afford consideration to relevant factors
that were due significant weight, gives significant weight to an im-
proper or irrelevant factor, or commits a clear error of judgment in
considering the proper factors.”
Irey, 612 F.3d at 1189 (numbering
omitted).
Here, Feliz’s sentence is substantively reasonable. The Dis-
trict Court did not fail to consider his personal history and charac-
teristics, and it was not required to analyze and make specific find-
ings as to each sentencing factor. Instead, the District Court rea-
sonably chose to place great weight on the need for his sentence to
provide just punishment and adequate deterrence. Finally, the Dis-
trict Court specifically found that Feliz was eligible for the safety
valve provision in the Sentencing Guidelines and went on to im-
pose a sentence below the mandatory ten-year minimum sentence.
Therefore, we affirm.
AFFIRMED.
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