USA v. Alvaro Viera-Gomez

Filing

Opinion issued by court as to Appellant Alvaro Viera-Gomez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 06/12/2014

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14113
Non-Argument Calendar
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D.C. Docket No. 8:12-cr-00558-VMC-AEP-3

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALVARO VIERA-GOMEZ,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 12, 2014)
Before HULL, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:

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Alvaro Viera-Gomez, a federal prisoner, appeals his 168-month sentence
after pleading guilty to conspiracy to possess and possession of a controlled
substance with intent to distribute five kilograms or more of cocaine while aboard
a vessel subject to the jurisdiction of the United States. Mr. Viera-Gomez argues
that the district court erred in finding that he was not entitled to a mitigating role
reduction under U.S.S.G. § 3B1.2 and that the district court erred in applying a
two-level enhancement under U.S.S.G. § 2D1.1 due to a co-defendant’s possession
of a firearm. Mr. Viera-Gomez also challenges the reasonableness of his sentence.
We affirm.
I
On December 6, 2012, two go-fast vessels, the Cayos Tour and the Cayos
Tour 2, each with four crew members aboard, departed from Honduras to receive
large quantities of cocaine from a Panamanian ship in international waters
(approximately 18 miles off the coast of Honduras). Mr. Viera-Gomez was a
member of the four-man crew on the Cayos Tour 2. Following the offload,
Marvin Losano-Armijo, a crew member of the Cayos Tour, realized that the
amount of cocaine transferred was short of the agreed-upon quantity and, after
making a phone call, retrieved a handgun and discharged several rounds at the
Panamanian ship.

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The U.S. Coast Guard spotted the two go-fast vessels, observed the offload
and the gunfire, and dispatched two helicopters to the area. The two go-fast vessels
fled, jettisoning packages into the water. Coast Guard personnel eventually
boarded both go-fast vessels and arrested Mr. Viera-Gomez and the seven other
crew members. Upon search of the debris field left by the two boats, Coast Guard
personnel recovered 22 bales containing 550 kilograms of cocaine that had been
jettisoned from the Cayos Tour 2. The cocaine jettisoned from the Cayos Tour was
not recovered.
Mr. Viera-Gomez pled guilty to two charges: conspiracy to possess, with
intent to distribute, five kilograms or more of cocaine while aboard a vessel subject
to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a),
70506(a), (b) and 21 U.S.C. § 960(b)(1)(B)(ii); and possession, with intent to
distribute, five kilograms or more of cocaine while aboard a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a),
18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii).
The

presentence

investigation

report

(PSI)

recommended

that

Mr. Viera-Gomez’s total offense level be established at 35 and his criminal history
score at I, yielding an advisory guidelines range of 168 to 210 months’
imprisonment. The guidelines calculation included a two-level increase under
U.S.S.G. § 2D1.1(b)(1) because one of Mr. Viera-Gomez’s co-defendants had
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possessed a firearm, see PSI at ¶ 23, and did not include any adjustment for
Mr. Viera-Gomez’s role in the conspiracy. Id. at ¶ 26. Mr. Viera-Gomez objected
to not receiving a two-level reduction for his minor role and to receiving the
two-level enhancement for possession of a firearm, but did not object to the
underlying facts in the PSI. He reiterated these arguments in his sentencing
memorandum as well as at his sentencing hearing. See D.E. 234 at 1-3; D.E. 289
at 30-36.
After explaining that it had considered his “very difficult childhood,” as well
as the circumstances of the case and the damage caused by the illegal drug trade in
the United States, the district court sentenced Mr. Viera-Gomez within the
advisory guidelines range to a total of 168 months’ imprisonment and five years of
supervised release. See D.E. 289 at 47, 50-51.
II
We review a district court’s determination of a defendant’s role in the
offense for clear error. See United States v. Rodriguez De Varon, 175 F.3d 930,
937 (11th Cir. 1999) (en banc). We also review for clear error a district court’s
findings of fact under U.S.S.G. § 2D1.1(b)(1). See United States v. Gallo, 195
F.3d 1278, 1280 (11th Cir. 1999). We review the reasonableness of a district
court’s sentence, imposed after consulting the advisory guidelines and considering

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the factors set forth in 18 U.S.C. § 3553(a), for an abuse of discretion. See United
States v. Victor, 719 F.3d 1288, 1291 (11th Cir. 2013).
III
Mr. Viera-Gomez argues that he should have received either a two-level or
four-level reduction in the offense level for his role as a minor or minimal
participant. Specifically, he claims that his role was significantly less than the roles
of other participants because he did not know the type or quantity of drugs
involved, he handled only a very small amount of drugs, and his role was simply to
hold the rope that tethered the boats together while the drugs were being offloaded.
As a general matter, § 3B1.2 “provides a range of adjustments for a
defendant who plays a part in committing the offense that makes him substantially
less culpable than the average participant.” U.S.S.G. § 3B1.2, n.3(A). When
determining whether a mitigating role adjustment is warranted, we look “first [to]
the defendant’s role in the relevant conduct for which [he] has been held
accountable at sentencing, and, second, [his] role as compared to that of other
participants in the relevant conduct.” De Varon, 175 F.3d at 940. “Only if the
defendant can establish that [he] played a relatively minor role in the conduct for
which [he] has already been held accountable—not a minor role in any larger
criminal conspiracy—should the district court grant a downward adjustment for
minor role in the offense.” Id. at 944.
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Mr. Viera-Gomez has not established that the district court clearly erred in
declining to apply a mitigating role adjustment. He was one of only eight
crewmembers on the two go-fast vessels and was held accountable only for the
quantity of cocaine that was recovered from the boat on which he had been
traveling. Therefore, the conduct of others in any broader conspiracy has little
bearing on the assessment of Mr. Viera-Gomez’s role here. Additionally, we have
held that “the amount of drugs imported is a material consideration in assessing a
defendant’s role in [his] relevant conduct.” Id. at 943. Mr. Viera-Gomez was one
of four crewmembers on the Cayos Tour 2, from which 550 kilograms of cocaine
was recovered. Given the amount of the drugs and his actions in helping transport
them, it was not clear error for the district court to find that Mr. Viera-Gomez was
not a minor or minimal participant.
Mr. Viera-Gomez also argues that the district court erred in applying a
two-level increase at sentencing under U.S.S.G. § 2D1.1(b)(1) for his
co-defendant’s possession of a firearm. Mr. Viera-Gomez argues that it was not
reasonably foreseeable to him that his co-defendant, Mr. Losano-Armijo, would
have a firearm because he was on a different go-fast vessel than
Mr. Losano-Armijo, he was not aware of the presence of the firearm, he had never
met Mr. Losano-Armijo, and he knew very little about the specifics of the
operation.
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For a § 2D.1.1(b)(1) firearm enhancement to be applied based on a
co-conspirator’s possession, “the government must prove by a preponderance of
the evidence: (1) the possessor of the firearm was a co-conspirator, (2) the
possession was in furtherance of the conspiracy, (3) the defendant was a member
of the conspiracy at the time of the possession, and (4) the co-conspirator
possession was reasonably foreseeable by the defendant.” Gallo, 195 F.3d at 1284
(emphasis omitted). Recognizing the “frequent and overpowering connection
between the use of firearms and narcotics traffic,” we have found it is “reasonably
foreseeable that one co-conspirator would possess a firearm where the conspiracy
involved trafficking in lucrative and illegal drugs.” United States v. Pham, 463
F.3d 1239, 1246 (11th Cir. 2006). Indeed, we have “further upheld application of
the [§] 2D1.1(b)(1) enhancement even where defendants claim they were unaware
of the firearm possession.” Id. (citing United States v. Martinez, 924 F.2d 209, 210
(11th Cir. 1991)).
Although Mr. Viera-Gomez objected to the two-level increase for presence
of a firearm, he did not object to any of the factual information set forth in the PSI,
and therefore admitted those facts for consideration during sentencing. See United
States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this circuit
that a failure to object to allegations of fact in a PSI admits those facts for
sentencing purposes.”). The facts in Mr. Viera-Gomez’s PSI demonstrated that,
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after the offloading of at least 550 kilograms of cocaine onto the two go-fast
vessels, Mr. Losano-Armijo fired shots at the Panamanian ship that had delivered
the cocaine. See PSI at ¶¶ 11, 13-14. It is clear, therefore, that Mr. Losano-Armijo
was a co-conspirator, that the firearm possession was in furtherance of the
conspiracy, and that Mr. Viera-Gomez was a member of the conspiracy at the time
of the incident. Additionally, the conspiracy involved a large amount of drugs,
making it reasonably foreseeable that a co-conspirator would possess a gun.
Accordingly, Mr. Viera-Gomez has not established that the district court clearly
erred in applying the two-level firearm enhancement.
Finally, Mr. Viera-Gomez, in arguing that the district court erred by
declining to vary downward from the advisory guidelines, appears to challenge the
reasonableness of his sentence. See Appellant’s Br. at 10-12. The party who
challenges a sentence bears the burden of establishing that the sentence is
unreasonable in light of the record and the factors in 18 U.S.C. § 3553(a). See
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Mr. Viera-Gomez has not met his burden of showing that the district court
abused its discretion in imposing his sentence. In reviewing a defendant’s sentence,
we must first ensure that the district court committed no significant procedural
error. See Gall v. United States, 552 U.S. 38, 51 (2007). Here, the district court
reviewed the PSI, heard the parties’ arguments, and considered the advisory
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guideline range and the § 3553(a) factors. And, as discussed above, the court did
not err in the application of the advisory guidelines. The district court therefore
imposed a procedurally reasonable sentence.
Assuming that the district court’s sentencing decision is procedurally sound,
we then—taking into account the totality of the circumstances—consider the
substantive reasonableness of the sentence. See id. Mr. Viera-Gomez’s sentence
was also substantively reasonable. His convictions involved the trafficking of a
large amount of narcotics, crimes which were made more dangerous by the
presence of a firearm. Although Mr. Viera-Gomez’s childhood and the poverty in
which he lived could have weighed in favor of a lesser sentence, the sentence
imposed was not substantively unreasonable. The total sentence of 168 months’
imprisonment is at the low end of the guideline range, and therefore, is one we
expect to be reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005) (“when the district court imposes a sentence within the advisory Guidelines
range, we ordinarily will expect that choice to be a reasonable one”). Additionally,
Mr. Viera-Gomez’s total sentence is well below the statutory maximum penalty of
life. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (finding
reasonable a defendant’s sentence that was “well below” the maximum sentence
available under statute). Considering the § 3553(a) factors and the totality of the

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circumstances, Mr. Viera-Gomez’s total sentence was substantively reasonable,
and the district court did not abuse its discretion.
IV
Because the district court did not err in declining to apply a mitigating role
adjustment or in applying a two-level firearms enhancement, and because
Mr. Viera-Gomez’s total sentence was substantively reasonable, we affirm.
AFFIRMED.

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