                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              FEBRUARY 11, 2008
                                No. 07-13569                  THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                   D. C. Docket No. 07-00075-CR-T-26-MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

RAFAEL JOSE PORTILLO-MARQUEZ,

                                                             Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (February 11, 2008)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Rafael Jose Portillo-Marquez appeals (1) the decision of the district court
denying him a minor-role reduction, pursuant to U.S.S.G. § 3B1.2(b), and (2) the

court’s low-end guideline-range sentence as substantively unreasonable. For the

reasons set forth below, we affirm.

      Portillo-Marquez agreed to serve aboard a freighter that he knew was being

used to smuggle cocaine. The crew consisted of eight other members. The Coast

Guard discovered more than 10,000 kilograms of cocaine hidden on the vessel.

Portillo-Marquez pled guilty to one count of 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, in violation of 46 U.S.C. §§ 70503(a), 70506(a),

(b) and 21 U.S.C. § 960(b)(1)(B)(ii), and one count of possessing with intent to

distribute five kilograms or more of cocaine while on board 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). His total offense level was

reduced by five levels, after which his Guidelines range was calculated as 135–168

months’ imprisonment. After noting that it had consulted the advisory Guidelines

range and 18 U.S.C. § 3553(a) factors, the district court sentenced Portillo-

Marquez to 135 months’ imprisonment on both counts, to run concurrently.

                                          I.

      Portillo-Marquez first argues that he should have been granted a two-level



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reduction as a minor participant because (1) there was no evidence suggesting that

he knew the amount of drugs involved, (2) the relevant conduct that was attributed

to him was far greater than the role he actually played in the offense, and (3) he

was less culpable than other participants.

      “[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.” United States v. Rodriquez De

Varon, 175 F.3d 930, 937 (11th Cir. 1999). Further explaining this standard, we

have stated,

      [A] trial court’s choice between ‘two permissible views of the
      evidence’ is the very essence of the clear error standard of review. . . .
      So long as the basis of the trial court’s decision is supported by the
      record and does not involve a misapplication of a rule of law, we
      believe that it will be rare for an appellate court to conclude that the
      sentencing court’s determination is clearly erroneous.

Id. at 945 (citation omitted).

      Section 3B1.2 of the Sentencing Guidelines provides for a two-level

decrease if the defendant was a minor participant in any criminal activity.

U.S.S.G. § 3B1.2. A defendant is a minor participant if he is less culpable than

most other participants, but his role cannot be described as minimal. Id. cmt. n.5.

“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).

      In determining a defendant’s mitigating role in the offense, the district court

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first “must measure the defendant’s role against the relevant conduct for which [he]

was held accountable at sentencing,” and second, “may also measure the

defendant’s role against other participants, to the extent that they are discernable,

in that relevant conduct.” De Varon, 175 F.3d at 945. 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 or essential role in that crime. See

id. at 942–43. Furthermore, “where the relevant conduct attributed to a defendant is

identical to [his] actual conduct, [he] cannot prove that [he] is entitled to a minor

role adjustment simply by pointing to some broader criminal scheme in which [he]

was a minor participant but for which [he] was not held accountable.” Id. at 941.

Further, “the amount of drugs imported is a material consideration in assessing a

defendant’s role in [his] relevant conduct.” Id. at 943. As to the second prong,

“the district court must determine that the defendant was less culpable than most

other participants in [his] relevant conduct.” Id. at 944. Moreover, relative

culpability is not necessarily dispositive, as none of the participants may have

played a minor or minimal role. Id.

      The district court did not clearly err in denying Portillo-Marquez’s request

for a minor-role reduction to his offense level because he is being held accountable

only for the amount of drugs that are attributable to him personally, and none of



                                           4
the evidence suggests that he played a smaller role in the offense than any of his

co-conspirators, except the ship’s captain. Accordingly, we affirm as to this issue.

                                          II.

      Portillo-Marquez next argues that his sentence is unreasonable because the

district court only considered the amount of drugs involved in the offense, as

calculated through the Guideline range, and did not consider any of the other

§ 3553(a) factors. Moreover, he argues that the amount of cocaine is not related to

his culpability because he was only a member of the freighter’s crew.

      We review a final sentence imposed by a district court for reasonableness.

United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007) (per curiam). In our

reasonableness review, moreover, we apply an abuse-of-discretion standard. Gall

v. United States, — U.S. —, 128 S. Ct. 586, 594, — L. Ed. 2d — (2007). When

reviewing the reasonableness of a sentence, we must consider the factors outlined

in § 3553(a) and the district court’s reasons for imposing the particular sentence.

See United States v. Williams, 435 F.3d 1350, 1354–55 (11th Cir. 2006) (per

curiam).

      While the district court must consider the § 3553(a) factors, it is not required

to discuss each factor. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005)

(per curiam). Rather, “an acknowledgment by the district court that it has



                                          5
considered the defendant’s arguments and the factors in section 3553(a) is

sufficient under Booker.” Id.

      Although we do not presume reasonable a sentence that is within the

guidelines range, United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007),

we have held that the use of the guidelines remains central to the sentencing

process, Talley, 431 F.3d at 787. Accordingly, “when the district court imposes a

sentence within the advisory Guidelines range, we ordinarily will expect that

choice to be a reasonable one.” Id. at 788. We have recognized that “there is a

range of reasonable sentences from which the district court may choose” and the

burden of establishing that the sentence is unreasonable in light of the record and

the § 3553(a) factors lies with the party challenging the sentence. Id.

      The district court did not abuse its discretion when it imposed on Portillo-

Marquez a 135-month sentence because the record shows the district court did

consider the sentencing factors of § 3553(a), as it elicited input from Portillo-

Marquez on those factors and it acknowledged taking them into consideration.

Portillo-Marquez’s sentence at the low end of the advisory Guidelines range was

reasonable. Accordingly, we affirm as to this issue as well.

      AFFIRMED.




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