                                                                   [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                       ------------------------------------------- U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                    No. 07-11563                          May 28, 2008
                              Non-Argument Calendar                   THOMAS K. KAHN
                      --------------------------------------------         CLERK

                     D.C. Docket No. 06-80121-CR-KAM

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                        versus

CESAR DAMIAN,


                                                       Defendant-Appellant.


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

                                  (May 28, 2008)

Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      Cesar Damian appeals his 70-month sentence imposed after he pled guilty to

conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 846. No

reversible error has been shown; we affirm.

      Damian argues that the district court erred in denying him a minor role

reduction, U.S.S.G. § 3B1.2(b). He asserts that his conduct in delivering drugs

was not essential to the success of the conspiracy because he did not manage

assets or direct anyone. He characterizes his role as that of a mere drug courier.

      We review for clear error the district court’s determination about a

defendant’s role in an offense. United States v. Ryan, 289 F.3d 1339, 1348 (11th

Cir. 2002). “The defendant has the burden of establishing his role by a

preponderance of evidence.” Id. Under U.S.S.G. § 3B1.2(b), “[a] defendant

warrants a two-level reduction for playing a minor role in an offense if he is less

culpable than most other participants, although his role could not be described as

minimal.” Id.

      In United States v. De Varon, 175 F.3d 930 (11th Cir. 1999), we set out two

elements that inform the sentencing court’s determination about a defendant’s role

in an offense: (1) the defendant’s role in the relevant conduct for which he has

been held accountable at sentencing; and (2) the defendant’s role as compared to

that of other participants in his relevant conduct. Id. at 940. About the first

                                          2
element, De Varon explains that “[o]nly if the defendant can establish that [he]

played a relatively minor role in the conduct for which [he] has already been held

accountable -- not a minor role in any larger criminal conspiracy -- should the

district court grant a downward adjustment for minor role in the offense.” Id. at

944. About the second element, De Varon counsels that this relative culpability

inquiry includes “only those participants who were involved in the relevant

conduct attributed to the defendant.” Id.

       The district court committed no clear error in determining that Damian’s

role in the offense was more than minor. About the first element, Damian was

held accountable at sentencing for the drug quantity attributed to the entire

conspiracy: 5 to 15 kilograms of cocaine. According to the presentence

investigation report (“PSI”), Damian made, at the direction of the leader of the

conspiracy, at least two drug deliveries totaling two and one-quarter ounces of

cocaine. But Damian, despite this low drug quantity as compared to that of the

larger conspiracy, was not a minor participant in the larger conspiracy. The

undisputed facts1 showed that Damian was involved in “almost daily” drug

distributions for the organization, lived in one of the organization’s stash houses,


  1
   Damian did not object to the factual statements about his relevant conduct contained in the PSI;
thus, these facts are deemed admitted. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.
2005).

                                                3
and was entrusted with updating the organization’s drug ledger to reflect how

much customers owed. In addition, he admitted that he had seen several 125-gram

packages of cocaine at the stash house and was paid $2000 a month for his

distribution activities.

       These activities indicate more than mere courier status and, instead, show

that Damian was aware of, understood, and participated in the workings of the

larger drug conspiracy. Cf. U.S.S.G. § 3B1.2, comment. (n.4) (a defendant’s “lack

of knowledge or understanding of the scope and structure of the enterprise and of

the activities of others is indicative of a role as a minimal participant”). He,

therefore, did not meet his burden in showing that he was substantially less

culpable than most other participants. See De Varon, 175 F.3d at 944 (“[t]he fact

that a defendant’s role may be less than that of other participants engaged in the

relevant conduct may not be dispositive of [his] role in the offense, since it is

possible that none are minor or minimal participants.”).

       We now turn to Damian’s argument that his sentence was unreasonable.

We review his sentence for reasonableness in the light of the factors set out in 18

U.S.C. § 3553(a). United States v. Winingear, 422 F.3d 1241, 1244-46 (11th Cir.




                                           4
2005).2 Briefly stated, under section 3553(a), a district court should consider,

among other things, the nature and circumstances of the offense, the history and

characteristics of the defendant, the need for adequate deterrence and protection of

the public, policy statements of the Sentencing Commission, provision for the

medical and educational needs of the defendant, and the need to avoid

unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7). “[T]he party

who challenges the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both [the] record and the factors in section 3553(a).”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

       We conclude that Damian’s sentence was reasonable. The sentence was

eight months below the correctly calculated Guidelines range of 78 to 97 months

and well below the statutory maximum term of life imprisonment. See 21 U.S.C. §

841(b)(1)(A); Winingear, 422 F.3d at 1246 (comparing, as one indication of

reasonableness, the actual prison term imposed against the statutory maximum).

The district court noted that it had considered the section 3553(a) factors and

sentenced Damian below his Guidelines range, in part, because one of his

codefendants -- who had a similar role in the conspiracy as he did -- received a 70-



   2
     In addition, reasonableness review employs an abuse-of-discretion standard. Gall v. United
States, 128 S.Ct. 586, 597 (2007).

                                              5
month sentence, at the low end of his Guidelines range.3 See 18 U.S.C. §

3553(a)(6). Based on the factors outlined in section 3553(a) and our review of the

record, we conclude that Damian has not carried his burden of showing that his

sentence was unreasonable.4

        AFFIRMED.




  3
    Damian had a higher Guidelines range than his codefendant because Damian did not receive the
third point reduction for acceptance of responsibility as he waited until his trial date to plead guilty.
See U.S.S.G. § 3E1.1(b).
   4
    In fact, on appeal, Damian offers no arguments about why his sentence is unreasonable other
than to say that he was deserving of a greater than eight-month variance.

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