                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            NOV 14, 2006
                             No. 06-12977                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 06-00025-CR-T-26-EAJ

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

LEBY HUMBERTO LAME-AVILA,

                                                         Defendant-Appellant.


                       ________________________

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

                           (November 14, 2006)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Leby Humberto Lame-Avila appeals his two concurrent 135-month

sentences for possession with intent to distribute five kilograms or more of

cocaine, in violation of 46 U.S.C. app. § 1903(a), (g), 21 U.S.C. § 960(b)(1)(B)(ii),

and conspiracy to possess with intent to distribute five kilograms or more of

cocaine, in violation of 46 U.S.C. app. § 1903(a), (g), (j), and 21 U.S.C.

§ 960(b)(1)(B)(ii), while aboard a vessel subject to the jurisdiction of the United

States. On appeal, Lame-Avila argues that the district court erred in denying a

minor-role adjustment and asserts his entitlement to a “lesser sentence” under

U.S.S.G. §§ 5K2.0 and 5K2.12. For the reasons set forth more fully below, we

affirm.

      Lame-Avila and seven codefendants were indicted on the above-mentioned

charges, to which Lame-Avila pled guilty. According to the presentence

investigation report (“PSI”), on January 12, 2006, the U.S. Coast Guard obtained

permission to board and search a Panamanian commercial freighter, ultimately

finding 50 bales of cocaine, which weighed 1,134 kilograms. Lame-Avila was

identified as the first officer. The freighter’s route took it from Spain, to Trinidad,

to the Dominican Republic, to Guyana, and to Haiti. In the early morning hours of

January 12, 2006, the entire crew participated in the transfer of the 50 bales of

cocaine from a go-fast vessel off the coast of Venezuela. Lame-Avila was held



                                           2
accountable for 1,134 kilograms of cocaine at sentencing.

      In preparing the PSI, the probation officer assigned a total offense level of

33 and a criminal history category of I, which produced a Guideline imprisonment

range of 135-168 months’ imprisonment. No adjustment was made for Lame-

Avila’s role in the offense. Lame-Avila objected to the lack of a minor-role

reduction and also sought a “lesser, reasonable sentence” under U.S.S.G. §§ 5K2.0

and 5K2.12. He argued that his Guideline range exceeded Booker’s1 limitation on

reasonable sentencing and that he was entitled to a “lesser sentence,” under

§ 5K2.12, due to duress, and, under § 5K2.0, because the Guidelines do not

accurately take into account his actions in trying to ground the vessel. Lame-Avila

concluded that a “departure” under § 5K2.12 was appropriate and that his actions,

“despite the duress and coercion, of trying to quit and later grounding the vessel

are actions that are not contemplated by the guidelines and should be considered as

mitigating factors in sentencing.”

      At the sentencing hearing, Lame-Avila testified that he was an experienced

seaman who was hired as a first officer for this voyage by Oscar Fernandez from

Global Ship Service. He explained that he knew nothing about the drug trafficking

until he arrived in Spain. Lame-Avila further described his three attempts to resign



      1
          United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

                                               3
during the course of the voyage, the threats that followed those attempts, and his

attempt to run the vessel aground by running into a sunken ship. As to his role in

the criminal activities, Lame-Avila testified that he did not organize anything with

respect to the drugs, and, other than physically loading the drugs, had no

involvement with the scheme. On cross-examination, Lame-Avila admitted that, in

Cartagena, he and the rest of the crew threatened to leave the vessel because they

had not been paid.

      The district court found that Lame-Avila was a sophisticated mariner and

overruled his objection regarding a minor-role adjustment based on the amount of

drugs involved and the key role a first officer plays on a vessel. The district court

denied Lame-Avila’s motion for a downward departure under § 5K2.12 on the

ground that Lame-Avila was not credible, reasoning that, if he had the courage,

after the drugs were on the boat, to threaten to quit because he had not been paid,

then he should have had the courage before that time to leave the boat and alert the

authorities. With regard to Lame-Avila’s motion for a reasonable sentence, the

district court construed it as requesting such consideration after it consulted the

advisory Guidelines and the 18 U.S.C. § 3553(a) factors. The district court stated

that it considered the motion, found that a sentence within the advisory Guideline

range was reasonable, and sentenced Lame-Avila to 135 months’ imprisonment.



                                           4
      We first consider Lame-Avila’s challenge to the district court’s denial of a

minor-role adjustment. Lame-Avila argues that the district court misapplied the

Guidelines by essentially holding that it would not consider a mitigating role due to

the quantity of drugs involved. Regarding his entitlement to a minor-role

adjustment, he points to his limited role as a mere transporter of the drugs and to

the greater role in the offense played by the captain, Fernandez, and, arguably,

other people, such as those in charge of the company and Fernandez’s superiors.

      “[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. De Varon, 175

F.3d 930, 937 (11th Cir. 1999) (en banc). 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. Section 3B1.2 permits an

adjustment to the Guideline range for a defendant who is substantially less culpable

than the average participant. Id., comment. (n.3). A defendant is a minor

participant if he is less culpable than most other participants, but his role cannot be

described as minimal. Id., comment. (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



                                           5
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.

As to the second prong, the participants must be identifiable or discernable from

the evidence and involved in the relevant conduct attributable to the defendant;

“[t]he conduct of participants in any larger criminal conspiracy is irrelevant.” Id.

at 944. “[T]he district court must determine that the defendant was less culpable

than most other participants in [his] relevant conduct.” Id. Moreover, relative

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

played a minor or minimal role. Id.

      As an initial matter, the record does not reflect that the district court

misapplied the Guidelines. Not only have we left open the possibility that the



                                           6
amount of drugs alone could be dispositive in determining a defendant’s role in the

offense, see id. at 943, but, in this case, the district court relied both on the amount

of drugs and Lame-Avila’s role on the vessel.

      As to the district court’s ultimate finding, we do not find clear error. With

respect to the first prong of the De Varon analysis, Lame-Avila was held

accountable only for the 1,134 kilograms of cocaine aboard the vessel, which he

helped to transfer from the go-fast boat onto his ship. Because his actual and

relevant conduct were the same, Lame-Avila cannot demonstrate his entitlement to

a minor-role reduction by relying on a broader conspiracy in which he only played

a minor part. Id. at 941. Nor, with respect to the second prong of the De Varon

analysis, can Lame-Avila rely on the conduct of participants in a larger criminal

conspiracy. Id. at 944. With respect to the participants identifiable from the

evidence, even if Lame-Avila is less culpable than the captain and Fernandez, who

hired him for the trip, Lame-Avila does not argue that he was less culpable than the

remaining six crew members on the vessel. Nor does the evidence support such an

argument. Lame-Avila served as the first officer and, along with the rest of the

crew, he transferred the 50 bales of cocaine from the go-fast boat and onto their

ship. Accordingly, Lame-Avila cannot show that he is less culpable than most

other participants in the relevant conduct.



                                              7
      With respect to his sentence, Lame-Avila argues that the district court erred

by not considering his “request for a lesser sentence” under U.S.S.G. § 5K2.0. He

asserts his entitlement to a “lesser sentence pursuant to U.S.S.G. § 5K2.0” because

the Guidelines do not take into account his attempts to resign and to ground the

vessel and, additionally, his actions were not contemplated by the Guidelines and

should be considered as mitigating factors in sentencing. He argues that it was

unreasonable for the district court not to consider these circumstances, the district

court did not address the issue despite the fact that he raised it in his sentencing

memorandum and through his testimony, and the court did not consider these

factors at sentencing despite its authority to do so. Lame-Avila also argues that he

was entitled to a “lesser sentence pursuant to U.S.S.G. § 5K2.12 for duress.” In

connection with his argument regarding the denial of a departure for coercion and

duress, Lame-Avila also argues that his 135-month sentence is unreasonable under

Booker because of that coercion and duress.

      We cannot review the district court’s discretionary decision not to depart

from the Guideline range, but we review de novo the issue of whether the district

court erroneously believed that it lacked the authority to depart. United States v.

Pressley, 345 F.3d 1205, 1209 (11th Cir. 2003); see also United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (reaffirming this rule following



                                            8
Booker). “[W]hen nothing in the record indicates otherwise, we assume the

sentencing court understood it had authority to depart downward.” United States

v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999).

      We review the final sentence imposed by the district court for

reasonableness. Winingear, 422 F.3d at 1245. The district court’s imposition of a

sentence and our reasonableness inquiry are guided by the factors outlined in 18

U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005);

Winingear, 422 F.3d at 1246. The § 3553(a) factors take into account:

       (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Talley, 431 F.3d at 786. “[T]here is a range of reasonable sentences from which

the district court may choose . . . .” Id. at 788. While a sentence within the

advisory Guidelines range is not, per se, a reasonable sentence, we ordinarily

expect such a sentence to be reasonable. Id. at 787-88. 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. at 788.

                                           9
       The district court refused to grant a downward departure under § 5K2.12 2

and nothing in the record indicates that the denial was based on a perceived lack of

authority to grant a departure for duress or coercion. Accordingly, we lack

jurisdiction to review the district court’s refusal to depart under § 5K2.12.

Pressley, 345 F.3d at 1209.

       The district court did not treat Lame-Avila’s arguments regarding § 5K2.0 3

as a separate motion for a downward departure. However, these arguments were

contained in Lame-Avila’s motion for a reasonable sentence, which the district

court considered in determining a reasonable sentence.4 Thus, to the extent Lame-


       2
         This section permits a downward departure for a defendant who “committed the offense
because of serious coercion, blackmail or duress, under circumstances not amounting to a complete
defense[.]” U.S.S.G. § 5K2.12, p.s.
       3
         This section describes permitted and prohibited departures under the Guidelines and
includes provisions for departures based on circumstances (1) not identified by the Guidelines, and
(2) present to a degree not taken adequately into consideration. U.S.S.G. § 5K2.0, p.s.
       4
          To the extent that Lame-Avila now argues that the district court erred in not ruling on a
motion for a downward departure pursuant to § 5K2.0, we hold that Lame-Avila invited the error.
See United States v. Harris, 443 F.3d 822, 823-24 (11th Cir. 2006) (“Where a party invites error,
the Court is precluded from reviewing that error on appeal.”); United States v. Stone, 139 F.3d 822,
838 (11th Cir. 1998) (“The doctrine of invited error is implicated when a party induces or invites
the district court into making an error.”). Lame-Avila did not explicitly refer to his § 5K2.0
argument in terms of a departure either in his motion or at sentencing. During sentencing, Lame-
Avila’s counsel had the following discussion with the district court:

       MR. EPIFANIO: Judge, at this time, what I’m asking for —
       THE COURT: You’re asking for a minor role adjustment?
       MR. EPIFANIO: Well, I’m asking for two things.
       THE COURT: You’re asking me to depart downward for coercion and duress?
       MR. EPIFANIO: Yes . . . .


                                                10
Avila argues that the district court failed to take his actions on the boat into

consideration at sentencing, his argument is without merit.

       As to the reasonableness of Lame-Avila’s sentence, given the district court’s

rejection of Lame-Avila’s testimony and its sentence at the low end of the advisory

Guidelines, Lame-Avila cannot meet this burden to establish that his 135-month

sentence was unreasonable.

       In light of the foregoing, Lame-Avila’s sentence is

       AFFIRMED.




As a result of Lame-Avila’s comment that he wanted two things, in light of the lack of clarity in his
written motion, the context of the conversation in which this comment was made, and the content
of Lame-Avila’s arguments at sentencing, any error by the district court in construing Lame-Avila’s
§ 5K2.0 argument as part of his motion for a reasonable sentence rather than treating it as a separate
motion for a downward departure under the Guidelines was invited.

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