                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS
                                                      FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                JANUARY 14, 2008
                            No. 07-13550        THOMAS K. KAHN
                                                     CLERK
                         Non-Argument Calendar
                       ________________________

                D. C. Docket No. 07-00051-CR-T-26-TBM

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                  versus

ILSON BENITEZ-APRILLA,

                                                    Defendant-Appellant.


                       ________________________

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

                            (January 14, 2008)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Ilson Benitez-Aprilla appeals his 135-month concurrent sentences for

(1) one count of conspiracy to distribute 5 kilograms or more of cocaine while

aboard a vessel subject to the jurisdiction of the United States, in violation of 46

U.S.C. §§ 70503(a), 70506(a), (b), 21 U.S.C. § 960(b)(1)(B)(ii); and (2) one count

of possession with intent to distribute 5 grams or more of cocaine while aboard a

vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C.

§§ 70503(a), 70506(a), 21 U.S.C. § 960(b)(1)(B)(ii), 18 U.S.C. § 2. Benitez-

Aprilla argues that he should have received a minor-role reduction to his base

offense level because, as a crew member of the go-fast boat, he was “a [mere]

pawn in the transport of the drugs[,]” without any ownership interest in the drugs

or role in organizing the drug smuggling, which involved more individuals than the

crew members of the go-fast boat. Second, he argues the district court imposed a

procedurally unreasonable sentence because it failed to correctly calculate the

guidelines. For the reasons set forth more fully below, we affirm.

      On February 4, 2007, the Coast Guard apprehended a speed boat, commonly

referred to as a “go-fast” boat, that did not display any indication of nationality, in

international waters approximately 380 nautical miles southwest of Punta Negra,

Peru. Coast Guard officers boarded the go-fast boat and took the crew, identified

as Benitez-Aprilla, Amin Hernandez-Perea, Carlos Molano-Valencia, Mario Julian



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Caisano-Guapi, and Jose Luis Huila-Cortes; and 41 bales of cocaine, weighing a

total of 995 kilograms, into custody. From the post-Miranda1 statements of several

crew members, the Coast Guard determined that an individual named “Neron” met

and hired the crew members in Buenaventura, Colombia, and that Hernandez-Perea

was the go-fast boat’s captain.

                                              I.

      We review for clear error a district court’s denial of a minor-role reduction.

United States v. De Varon, 175 F.3d 930, 937-38 (11th Cir. 1999) (en banc). We

cannot find clear error unless we are “left with a definite and firm conviction that a

mistake has been committed.” United States v. Crawford, 407 F.3d 1174, 1177

(11th Cir. 2005)(quotation marks omitted).

      Section 3B1.2(b) of the United States Sentencing Guidelines provides for a

two-level reduction in a defendant’s base offense level if the court determines that

he was a minor participant in the offense. U.S.S.G. § 3B1.2(b). A minor

participant means any participant “who is less culpable than most other

participants, but whose role could not be described as minimal.” U.S.S.G.

§ 3B1.2(b), comment. (n.3); see also De Varon, 175 F.3d at 944. The defendant

bears the burden of proving by a preponderance of the evidence that he is entitled



      1
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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to a minor-role adjustment. De Varon, 175 F.3d at 939. Moreover, a conspiracy

can exist in which no participant plays a minor-role. See United States v. Zaccardi,

924 F.2d 201, 203 (11th Cir. 1991).

      In determining whether a defendant played a minor role in the offense for

which he has been held accountable, the district court first “must measure the

defendant’s role against the relevant conduct attributed to [him] in calculating [his]

base offense level.” De Varon, 175 F.3d at 943-44. Second, the district court “may

also measure the defendant’s role against the other participants . . . in the relevant

conduct.” Id. at 945. “[T]he district court may consider only those participants

who were involved in the relevant conduct attributed to the defendant. The

conduct of participants in any larger criminal conspiracy is irrelevant.” Id. at 944.

      With respect to the first prong of the De Varon test, Benitez-Aprilla failed to

show that he played a minor role in the relevant conduct for which he was held

accountable at sentencing. Benitez-Aprilla’s base level offense was founded on the

transport of 995 kilograms of cocaine. Benitez-Aprilla made no objection to the

995 kilograms of cocaine that he possessed on the vessel nor to his participation in

the cocaine’s transport. Indeed, the large amount of cocaine is dispositive. See De

Varon, 175 F.3d at 943 (“[T]he amount of drugs imported is a material

consideration in assessing a defendant’s role in [his] relevant conduct . . . .[W]e do



                                           4
not foreclose the possibility that [the] amount of drugs may be dispositive . . . .”).

      With respect to the second prong of the De Varon test, the evidence is

insufficient to show that Benitez-Aprilla was a minor participant in comparison to

other defendants, aside from the boat’s captain. Benitez-Aprilla failed to produce

any evidence to distinguish himself from his codefendants in the relevant conduct

or to establish a wider conspiracy. Furthermore, the record does not contain any

additional information that would indicate the existence of a wider conspiracy or

differentiate Benitez-Aprilla from the other crew members of the go-fast boat.

Benitez-Aprilla failed to prove by a preponderance of the evidence that he is

entitled to a minor-role reduction. For all these reasons, the district court did not

clearly err by denying Benitez-Aprilla a minor-role reduction.

                                           II.

      We have held that, after the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court

must not only correctly calculate the guideline imprisonment range, but must treat

that range as advisory and impose a reasonable sentence. United States v. Talley,

431 F.3d 784, 786 (11th Cir. 2005). Specifically, the district court must impose a

sentence that is both procedurally and substantively reasonable. United States v.

Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006); Gall v. United States, No. 06-



                                            5
7949, slip op. at 12 (U.S. Dec. 10, 2007). The Supreme Court has explained that a

sentence may be procedurally unreasonable if the district court improperly

calculates the guideline imprisonment range, treats the Guidelines as mandatory,

fails to consider the appropriate statutory factors, bases the sentence on clearly

erroneous facts, or fails to adequately explain its reasoning. Gall, No. 06-7949,

slip op. at 12. The Court also has explained that the substantive reasonableness of

a sentence is reviewed under an abuse-of-discretion standard. Id. It has suggested

that review for substantive reasonableness under this standard involves inquiring

whether the factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at

17.

      Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary” to comply with the purposes of

sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the offense,

promoting respect for the law, providing just punishment for the offense, deterring

criminal conduct, protecting the public from future criminal conduct by the

defendant, and providing the defendant with needed educational or vocational

training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the

sentencing court to consider certain factors, including the nature and circumstances

of the offense, the history and characteristics of the defendant, the guideline



                                           6
imprisonment range, and the need to avoid unwarranted sentencing disparities. See

18 U.S.C. § 3553(a)(1), (4), and (6).

      Here, the district court imposed a procedurally reasonable sentence. See

Hunt, 459 F.3d at 1182 n.3; Gall, No. 06-7949, slip op. at 12. The district court

correctly calculated the guideline imprisonment range, as discussed above. See

Gall, No. 06-7949, slip op. at 12. Benitez-Aprilla, who is counseled on appeal,

does not argue that the district court failed to consider the statutory factors. Nor

does he argue that the district court imposed a substantively unreasonable sentence.

Therefore, he has abandoned those arguments. See United States v. Cunningham,

161 F.3d 1343, 1344 (11th Cir. 1998) (holding in a counseled case that a defendant

abandons an issue when he fails to offer an argument on it on appeal).

      In light of the foregoing, Benitez-Aprilla’s sentence is

      AFFIRMED.




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