                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAY 2, 2007
                             No. 06-15236                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 04-00640-CR-WSD-1

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

EMMA NUNEZ-GONZALES,

                                                   Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________


                              (May 2, 2007)


Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Emma Nunez-Gonzales appeals her sentence imposed after she pled guilty to

attempt to import methamphetamine, in violation of 21 U.S.C. §§ 952(a),

960(a)(1), (b)(1)(H), 963; and attempt to possess with intent to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846. Gonzales

asserts the district court erred in denying her a minor-role reduction. She further

contends her 140-month sentence is unreasonable. We affirm her sentence.

                                 I. DISCUSSION

A. Minor-role reduction

       We review a district court’s decision on whether to grant a minor-role

reduction for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.

1999) (en banc). “[M]inor participants may receive a two-level reduction, and . . .

a minor role in the offense ‘means any participant who is less culpable than most

other participants, but whose role could not be described as minimal.’” Id. at 939

(citing U.S.S.G. § 3B1.2, comment. (n.3)). The defendant has the burden of

establishing her role by a preponderance of the evidence. Id. For a sentencing

court to determine whether to grant a minor-role reduction, it considers two

principles. Id. at 940. First, the court must measure the defendant’s role against

the relevant conduct for which she is being held accountable. Id. “Only if the

defendant can establish that she played a relatively minor-role in the conduct for



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which [s]he has already been held accountable–not a minor role in any larger

criminal conspiracy–should the district court grant” a minor-role reduction. Id. at

944. The second prong of the minor-role reduction analysis permits a district

court, “where the record evidence is sufficient . . . [, to] measure the defendant’s

conduct against that of other participants in the criminal scheme attributed to the

defendant.” Id. at 934. “[W]hen a drug courier's relevant conduct is limited to her

own act of importation, a district court may legitimately conclude that the courier

played an important or essential role in the importation of those drugs. ” Id. at

942-43.

      Amendment 635 adopted De Varon and states a defendant who is held

accountable only for the conduct in which she was personally involved is not

precluded from being considered for a role reduction, if her function in the larger

conspiracy was limited. U.S.S.G. § 3B1.2, Amendment 635, App. C. It

specifically notes a defendant whose role is limited to transporting drugs, and who

is only held accountable for the drugs she personally transported, is not precluded

from a reduction. Id.

      We upheld a district court’s determination that, under De Varon, it would be

an exceptional case, if not impossible, to grant a minor-role reduction where a

defendant is only held accountable for his own conduct. United States v. Boyd,



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291 F.3d 1274, 1276-77 (11th Cir. 2002). The defendant argued the district court

erred by creating a per se rule, but we found the district court followed De Varon

by measuring the defendant’s role against the relevant conduct for which he was

held accountable and that its comments were consistent with De Varon and did not

create a per se rule. Boyd, 291 F.3d at 1277-78.

      Gonzales asserts the district court wrongly interpreted De Varon as

precluding a drug courier from receiving a minor-role reduction. The district

court, however, correctly conducted the De Varon analysis. It looked at the

conduct, as it must, for which Gonzales was held accountable. De Varon, 175 F.3d

at 934. It then noted that, where a defendant is held accountable only for the

conduct for which she is responsible, that assessment “can well be dispositive,”

and likened her case to the heroin importation in De Varon, where the defendant,

like Gonzales, was not held accountable for the manufacture of heroin, but only for

the importation. The court did not say it would not look at any other factor in

making the judgment regarding the role reduction, or that it was dispositive, only

that it could be. This was similar to the language we approved in Boyd. See Boyd,

291 F.3d at 1277.

       Additionally, under the De Varon analysis, measuring Gonzales’s role

against the conduct charged was the crucial step, the one that the court “must” take,



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not, as in the second prong, one that it “may” take. See De Varon, 175 F.3d at 934.

The court then asked, pursuant to De Varon, what other participants could be used

to measure her conduct against, and Gonzales argued that, as compared with the

manufacturers and distributor, she would be less culpable. The court then heard a

proffer of what the Government’s evidence would be regarding Gonzales’s role.

Additionally, the court restated the defendant was not precluded from the role

reduction, but the fact she was held accountable only for her conduct could be

dispositive, and further found Gonzales failed to meet her burden to show

sufficient evidence that she was entitled to the reduction. This is correct, as the

court was not making a per se judgement. See Boyd, 291 F.3d at 1277.

Accordingly, as the district court correctly conducted the analysis and Gonzales

was only held responsible for her conduct, the district court did not clearly err in

not granting a minor-role reduction.

B. Reasonableness of sentence

      We review the sentence imposed by the district court for reasonableness.

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (citing United States v.

Booker, 125 S. Ct. 738 (2005)). The Supreme Court has directed sentencing courts

to consider the following factors in imposing sentences under the advisory

Guidelines:



                                           5
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need for the sentence imposed
      (A) to reflect the seriousness of the offense, to promote respect for the
      law, and to provide just punishment for the offense; (B) to afford
      adequate deterrence to criminal conduct; (C) to protect the public
      from further crimes of the defendant; and (D) to provide the defendant
      with needed [treatment]; (3) the kinds of sentences available; (4) the
      kinds of sentence and the sentencing range. . .; (6) the need to avoid
      unwarranted sentence disparities among defendants with similar
      records who have been found guilty of similar conduct; and (7) the
      need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a); Booker, 125 S. Ct. at 765-66. The district court must first

correctly calculate the defendant's Guidelines range, then, using the § 3553(a)

sentencing factors, the court can impose a more severe or more lenient sentence, as

long as it is reasonable. United States v. Crawford, 407 F.3d 1174, 1178-79 (11th

Cir. 2005). “[T]he party who challenges the sentence bears the burden of

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

the factors in section 3553(a).” Talley, 431 F.3d at 788.

      Gonzales has not met her burden to demonstrate her sentence, below the

guideline range, was unreasonable. See id. First, the district court used the

§ 3553(a) factors in determining her sentence, including: (1) the severity of the

crime of importing a dangerous drug, such as methamphetamine, including the

effect that it has on society; (2) the need to deter crime; (3) the impact her sentence

would have on her family; and (4) the need for consistent sentencing. 18 U.S.C.



                                           6
§ 3553(a)(1), (2)(A),(B),(6). Additionally, although § 3553(a)(6) directs the

district court to “avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct,” Gonzales’s

sentence was higher than those of other couriers due to the purity of the

methamphetamine being a factor in determining the severity of the crime. See

U.S.S.G. § 2D1.1(b)(4) (specifically adding a two-level increase for the

importation of methamphetamine). Her sentence disparity argument is only in

reference to couriers who did not traffic pure methamphetamine, and not in

reference to those who have committed the same importation crime of 85% pure

methamphetamine. Therefore, she has not established her 140-month, below-

Guidelines sentence was unreasonable. See Talley, 431 F.3d at 788.

                                II. CONCLUSION

      The district court did not err in denying Gonzales a minor-role reduction.

Additionally, her sentence is reasonable.

      AFFIRMED.




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