Opinion
No. 97-4076
DECIDED July 22, 1999
Randy Rosenblum, Kathleen M. Williams, Bernardo Lopez, Asst. Fed Pub. Defenders, Miami, FL, for Defendant-Appellant.
Ann Taylor, Dawn Bowen, Joan M. Silverstein, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida, D.C. Docket No. 96-646-CR.
Before RONEY and LAY, Senior Circuit Judges.
Honorable Donald P. Lay, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
This decision is rendered by a quorum, due to the retirement of then-Chief Judge Hatchett on May 14, 1999. 28 U.S.C. § 46(d).
On April 21, 1998, we filed an opinion vacating the judgment in this case and remanding for re-sentencing. United States v. Campbell, 139 F.3d 820 (11th Cir. 1998). Our decision followed the same line of reasoning as a prior panel of this circuit in United States v. DeVaron, 136 F.3d 740 (11th Cir. 1998). We held that it was improper for the sentencing court to consider a fact that "relates solely to Campbell's status as a drug courier," citing United States v. Velosa, 83 F.3d 380 (11th Cir. 1996).
On motion of the government, we stayed the mandate in this case until rehearing en banc of DeVaron. The full court has now issued its opinion which overrules the precedents set in United States v. Velosa, 83 F.3d 380 (11th Cir. 1996) and United States v. DeVaron, 136 F.3d 740 (11th Cir. 1998). See United States v. DeVaron, 175 F.3d 930, 11th Cir. 1999 (en banc). In light of that en banc opinion, we vacate our prior opinion and affirm the judgment and sentence in this case.
It was not improper for the district court to rely on factors relating to defendant's status as a drug courier in denying her a minor role adjustment. A review of the record reveals that there was no clear error in the determination that defendant was not entitled to a minor role adjustment in her sentence.