           Case: 15-10874    Date Filed: 09/21/2015   Page: 1 of 4


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10874
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:09-cr-20996-UU-5



UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                versus

NIDAL BADAWI,

                                                         Defendant-Appellant.

                       ________________________

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

                            (September 21, 2015)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
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      Nidal Badawi appeals his 29-month sentence, imposed after he pleaded

guilty to conspiracy to commit food stamp fraud, 18 U.S.C. § 371. He says the

district court clearly erred when it denied him a minor-role reduction, United States

Sentencing Guidelines § 3B1.2(b). We affirm.

      Whether a defendant qualifies for a minor-role reduction is a finding of fact

that we review for clear error. United States v. Rodriguez De Varon, 175 F.3d

930, 937 (11th Cir. 1999) (en banc). The defendant bears the burden of

establishing a minor role by a preponderance of the evidence. Id. at 934.

      A participant with a minor role is one who is “less culpable than most other

participants, but whose role could not be described as minimal.” § 3B1.2(b), cmt.

n.5. District courts must measure a defendant’s role in relation to the “relevant

conduct” attributed to him—that is, “the conduct for which []he has been held

accountable under USSG § 1B1.3.” De Varon, 175 F.3d at 934 (citation

reformatted).

      District courts may also measure a defendant’s role by comparing his

conduct to that of other participants in the same criminal scheme. But “a defendant

is not automatically entitled to a minor role adjustment merely because []he was

somewhat less culpable than the other discernable participants. Rather, the district

court must determine that the defendant was less culpable than most other




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participants in [his] relevant conduct.” De Varon, 175 F.3d at 944 (emphasis

omitted).

       Badawi first argues he played a minor role because out of the scheme’s

overall losses of about $2.2 million only 8% were attributable to him. 1 But the

government explained at sentencing that it was able to track only about $1 million

in losses, and Badawi was responsible for cashing nearly $200,000 of that figure.

Considering Badawi was responsible for approximately 20% of the identifiable

losses, the district court did not clearly err in denying the reduction. See id. (“Only

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.”).

       Badawi also argues that he was entitled to the minor-role reduction because

he was less culpable than four of his six codefendants. But at sentencing the

government indicated that Badawi was the “highest grossing cashier” involved in

the scheme. And his involvement spanned the entirety of the two-year conspiracy.

Even if Badawi was one of the least culpable conspirators, it was within the district

court’s discretion to deny the minor-role reduction. See United States v. Zaccardi,
       1
          To the extent that Badawi argues the district court erred by attributing to him the entire
amount of the scheme’s losses, his argument fails. See United States v. Dabbs, 134 F.3d 1071,
1082 (11th Cir. 1998) (“[T]he district court may hold all participants in a conspiracy responsible
for the losses resulting from the reasonably foreseeable acts of co-conspirators in furtherance of
the conspiracy.”).


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924 F.2d 201, 203 (11th Cir. 1991) (per curiam) (“Although the [presentence

investigation report] indicated that [the defendant] was one of the ‘least culpable’

defendants, the district court was not obliged on that basis to determine that

appellant was a ‘minor’ participant for the purposes of § 3B1.2 of the sentencing

guidelines.”).

      In sum, based on the facts presented in the PSR and at sentencing the district

court explicitly characterized Badawi’s participation in the conspiracy as

“extensive” rather than “isolated”—“so much involvement” that it was not proper

to award a minor-role reduction. We cannot say that determination was clearly

erroneous.

      AFFIRMED.




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