                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             JUNE 17, 2008
                              No. 07-14266
                                                           THOMAS K. KAHN
                          Non-Argument Calendar
                                                               CLERK
                        ________________________

                    D. C. Docket No. 07-14034-CR-KMM

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                   versus

TOCCARA LATASHA LEWIS,

                                                   Defendant-Appellant.

                        ________________________

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

                               (June 17, 2008)

Before BIRCH, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Toccara Latasha Lewis appeals her concurrent 37-month sentence after
pleading guilty to conspiracy to possess with the intent to distribute cocaine, in

violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1). We affirm.

                                 I. BACKGROUND

        In January 2007, a multi-agency task force initiated a state-ordered wire tap

on the cellular (“cell”) phones of several individuals suspected of cocaine

trafficking, including Tommy Pennamon. The investigation had revealed that

Pennamon was responsible for the distribution of cocaine in Indian River County,

Florida, and that Alfred King was his cocaine supplier. On March 9, 2007,

Pennamon called King to order 252 grams of cocaine and sent his girlfriend,

Shavon Adams, to purchase the cocaine from King.

        After obtaining the cocaine from King, Adams, who was driving, called

Pennamon to tell him that she was on her way back and that appellant, Toccara

Lewis, was with her. Lewis also talked with Pennamon and told him that they

needed to be armed when they next obtained cocaine. Law enforcement followed

their car to Martin County, Florida, and made a traffic stop. A search of the

vehicle revealed cocaine in a plastic bag under the driver’s seat that later was

weighed at 250.8 grams. To avoid compromising the investigation, no arrests were

made.



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       An intercepted cell-phone conversation occurred on March 10, 2007,

between Pennamon and Lewis. Lewis told Pennamon that she did not want to talk

on the cell phone because of the cocaine seizure by authorities. Lewis then gave

the cell phone to Adams, who told Pennamon about the traffic stop the previous

day and the cocaine seizure.

       A grand jury returned a six-count indictment against Lewis and four other

conspirators/defendants, including Adams. Lewis was indicted under Count Two,

conspiracy to possess with intent to distribute cocaine, and Count Four, possession

with intent to distribute cocaine. She pled guilty to both counts without a plea

agreement.

       Lewis’s Presentence Investigation Report (“PSI”) grouped the two crimes

and set a base offense level of 20 calculated by the amount of cocaine attributed to

her, 252 grams.1 This level was reduced by two points because Lewis accepted

responsibility and by an additional point because the government filed a motion

stating that Lewis had assisted in the investigation. Consequently, she had a total

offense level of 17. With five criminal history points and a criminal history

category of III, Lewis’s Sentencing Guidelines range was 30-37 months.

       Lewis’s counsel filed an objection to the PSI and argued that she deserved


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        Lewis was held responsible for the total amount of cocaine Pennamon ordered from King,
252 grams, which was slightly more than the amount actually recovered, 250.8 grams.

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either a four-level reduction as a minimal participant or a two-level reduction as a

minor participant under U.S.S.G. § 3B1.2(a), (b) (2006). Defense counsel argued

that Lewis was the least culpable of the coconspirators and that she had no

knowledge of the scope or structure of the drug conspiracy. Counsel stated that

this incident was an isolated situation during which she accompanied Adams

because Adams was afraid to go alone. Defense counsel reiterated this objection at

sentencing and pursued his argument that Lewis deserved at least a minor-role

reduction.

      The district judge overruled the objection because Lewis was sufficiently

aware of the criminal activities of Pennamon and Adams to deny a minor-role

adjustment. After considering Lewis’s statements, the Sentencing Guidelines, and

the statutory factors, the judge sentenced Lewis to 37 months of imprisonment for

each count, to be served concurrently. After sentencing, Lewis’s counsel renewed

her objection to the denial of a minor-role reduction. Defense counsel argues that

the district judge erred by denying Lewis’s request for a minor-role reduction in

her sentence.

                                 II. DISCUSSION

      On appeal, Lewis’s counsel argues that she accompanied Adams only to

obtain the cocaine because Adams was afraid and that there was no evidence that



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Lewis was to be paid for accompanying Adams. Counsel maintains that Lewis

played no role in the larger criminal enterprise and that the criminal conduct would

have occurred had she not been present. Therefore, her counsel argues that

Lewis’s involvement was not essential to the completion of the crime, which

entitled her to a minor-role reduction in her sentence.

      “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 defendant “bears the burden of proving the mitigating role in the offense by a

preponderance of the evidence.” Id. at 939. The determination of the defendant's

role lies within the sound discretion of the trial judge. Id. at 945. The judge,

however, is not required to make any specific factual findings to determine the

defendant's role in the crime. Id. at 939.

      The Sentencing Guidelines permit a sentencing judge to decrease a

defendant's offense level by two points if the judge finds that the defendant was a

“minor participant” in the criminal activity. U.S.S.G. § 3B1.2(b). In determining

whether a minor-role reduction is warranted, a district judge “should be informed

by two principles discerned from the Guidelines.” De Varon, 175 F.3d at 940.

First, the judge “must measure the defendant's role against the relevant conduct for



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which she was held accountable at sentencing.” Id. at 945. Relevant conduct is the

conduct upon which a defendant’s base offense level is calculated. Id. at 941. We

have held that the district judge must determine if the defendant played a minor

role in the relevant conduct attributed to her, “not a minor role in any larger

criminal conspiracy” for which the defendant was not held accountable. Id. at 944.

We have recognized “that in many cases this method of analysis will be

dispositive.” Id. at 945.

      Under the second part of the De Varon analysis, the judge “may also

measure the defendant's role against the other participants, to the extent that they

are discernable, in that relevant conduct.” Id. at 945. Significantly, “a defendant is

not automatically entitled to a minor role adjustment merely because she was

somewhat less culpable than the other discernable participants.” Id. at 944.

Instead, the judge “must determine that the defendant was less culpable than most

other participants in her relevant conduct.” Id. Statements in a PSI to which no

objection is raised are deemed admitted. United States v. Shelton, 400 F.3d 1325,

1330 (11th Cir. 2005).

      Lewis did not challenge any factual allegation in her PSI; consequently,

those facts are admitted. Id. With regard to the first part of the De Varon analysis,

Lewis was held accountable only for the conduct that could be attributed to her.



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De Varon, 175 F.3d at 945. The PSI held Lewis accountable for the 252 grams of

cocaine that Pennamon ordered for that transaction, 250.8 of which were seized

during the traffic stop in which she was a passenger in Adams’s car. Lewis was

not held responsible for all of the conduct of the criminal enterprise; other

participants in the enterprise were charged with possession of up to 1,512 grams of

cocaine related to transactions in which they were involved.

      Additionally, the district judge found that Lewis knowingly accompanied

Adams on the unlawful cocaine transaction. In a cell-phone conversation after the

cocaine was purchased, Pennamon asked Lewis if she knew what to do, and she

responded that they were driving the speed limit with their seat belts fastened. She

also said that she would bring a gun for the next transaction. The day after the

traffic stop, Lewis spoke with Pennamon and informed him of the stop, stated that

she did not want to talk on the cell phone, and told him that the cocaine had been

seized by authorities. There is sufficient evidence in the record to support the

district judge’s holding that Lewis’s role was not minor in the cocaine transaction

in which she was involved.

      Under the second part of the De Varon analysis, a sentencing judge may

measure a defendant’s culpability in comparison to that of other participants in the

relevant criminal activity. De Varon, 175 F.3d at 945. Lewis’s conduct was



                                           7
essentially identical to that of Adams, her coconspirator. On behalf of Pennamon,

Adams drove to meet King to purchase 252 grams of cocaine and to transport it to

Pennamon. Lewis knowingly accompanied Adams for the cocaine transaction,

stated that she would bring a gun the next time, and that she knew how to act while

transporting the cocaine. The day following the traffic stop, both Lewis and

Adams spoke with Pennamon, who was directing them, to warn him that the

cocaine had been seized by authorities. There is sufficient evidence in the record

to support the district judge’s finding that Lewis’s role was not minor when

compared to the other participants because her role was virtually the same as that

of coconspirator Adams.

      “[A] trial court's choice between ‘two permissible views of the evidence’ is

the very essence of the clear error standard of review.” Id. (quoting Anderson v.

City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511 (1985)). Because

the record shows that Lewis’s involvement was more than simply accompanying

Adams during the drug transaction and not significantly different from her

coconspirator with whom she was traveling when the authorities detained them, the

district judge properly could have found that Lewis played more than a minor role.

There was no clear error in this determination.

      Lewis’s counsel further has argued that she deserves a minor-role reduction



                                          8
because there is no evidence of her previous involvement with the subject criminal

enterprise. We have held, however, that the district judge must determine if the

defendant played a minor role in the relevant conduct, not a minor role in the larger

criminal conspiracy for which the defendant was not held accountable. Id. at 944.

Because Lewis was held accountable only for the cocaine related to the traffic stop,

she must establish that she played a minor role compared to her coconspirators

with regard to the possession of the 252 grams of cocaine. Her conduct relative to

the participants in the larger conspiracy for which she was not charged is

irrelevant. Id. Therefore, the district judge did not clearly err in denying Lewis a

minor-role reduction in her sentence.

                                III. CONCLUSION

      Lewis has appealed her sentence for conspiracy to possess with intent to

distribute and possession of cocaine because she contends that she was entitled to a

minor-role reduction. Since the record supports the district judge’s finding that

Lewis played more than a minor role in the cocaine transaction, and she was held

accountable only for her relevant conduct, the district judge did not clearly err in

denying her a minor-role reduction. Accordingly, her sentence is AFFIRMED.




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