                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              JANUARY 23, 2007
                               No. 06-12694                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                  D. C. Docket No. 93-00255-CR-T-27-TGW

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                     versus

JOSE JALCA,

                                                         Defendant-Appellant.


                         ________________________

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

                              (January 23, 2007)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Appellant Jose Jalca appeals his sentence wherein the district court denied
him a minor-role reduction pursuant to U.S.S.G. § 3B1.2(b). Jalca pled guilty to

one count of conspiracy to possess with intent to distribute five or more kilograms

of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846. On appeal, Jalca argues

that the district court clearly erred in denying him a minor-role adjustment.1 Jalca

states his role was minor since he merely acted as a broker by trying to find a buyer

for the cocaine, which he never succeeded in doing. Additionally, Jalca was not

involved in the initial phase of the conspiracy, where the drugs were transported

into the United States.

       “This Court has long and repeatedly held that 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).

The proponent of the downward adjustment always bears the burden of proving the

mitigating role in the offense by a preponderance of the evidence. Id. at 939. In

determining the defendant’s role, the decision falls within the sound discretion of


       1
         In the Standard of Review portion of his brief, Jalca mentions that this court should review
his sentence for reasonableness under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160
L. Ed. 2d 621 (2005). In his Summary of the Argument, Jalca states the district court ignored 18
U.S.C. § 3553(a) because a sentence less than 188 months would have been sufficient due to his role
as a broker in the transaction. Jalca did not develop these arguments any further, and the
government did not address any of these arguments in its brief.
        “We may decline to address an argument where a party fails to provide arguments on the
merits of an issue in its initial or reply brief. Without such argument the issue is deemed waived.”
United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006). Since Jalca did not substantively
address his arguments that his sentence was not reasonable and that the district court violated 18
U.S.C. § 3553(a), his arguments are deemed waived and will not be addressed here.

                                                 2
the district court: “a trial court’s choice between ‘two permissible views of the

evidence’ is the very essence of the clear error standard of review.” Id. at 945.

(citation omitted).

       The Sentencing Guidelines permit a court to decrease a defendant’s offense

level by two points if it finds that the defendant was a “minor participant” in the

criminal activity. U.S.S.G. § 3B1.2(b). A defendant is a minor participant if he is

“less culpable than most other participants, but whose role could not be described

as minimal.” U.S.S.G. § 3B1.2, comment. (n.5). In determining whether a

mitigating-role reduction is warranted, a district court “should be informed by two

principles discerned from the Guidelines: first, 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 [his] relevant conduct.” De Varon,

175 F.3d at 940. In looking to 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 calculating [his] base offense level.” Id. at

941.

       Under the first prong of the De Varon analysis, we conclude from the record

that the district court correctly compared Jalca’s conduct, his involvement in trying

to find a buyer for and testing the 99.4 kilograms of cocaine, with the conduct for



                                           3
which he was sentenced, conspiracy with intent to distribute 99.4 kilograms of

cocaine.

      Under the second prong of the analysis, the district court stated:

      He was a willing and knowing conspirator. His role might have been
      slightly different than others in the sense that he didn’t have a
      proprietary interest in the cocaine, but nonetheless, he stood to gain a
      substantial amount of money for his participation in the role as
      broker/negotiator.

Jalca discussed prices for the cocaine with the undercover agents, brought a

potential buyer to the warehouse where the cocaine was located, and inspected and

tested the cocaine. At the sentencing hearing, Jalca’s attorney admitted that Jalca

would have received $1,000 per kilogram of cocaine for finding a buyer. Jalca’s

potential fee was approximately $99,000, while the actual sales price for the

cocaine was $200,000.

      Since the district court’s findings are supported by the record, and the court

properly applied the analysis established by De Varon, Jalca has failed to meet his

burden, and the district court did not clearly err in denying Jalca a minor-role

reduction. Accordingly, we affirm Jalca’s sentence.

      AFFIRMED.




                                           4
