                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                No. 07-13789                     March 25, 2008
                            Non-Argument Calendar              THOMAS K. KAHN
                                                                    CLERK
                          ________________________

                   D. C. Docket No. 07-00061-CR-T-26MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

JULIO SANTANA,

                                                              Defendant-Appellant.


                          ________________________

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

                                (March 25, 2008)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     After pleading guilty to possession with intent to distribute five kilograms or
more of cocaine while aboard a vessel subject to U.S. jurisdiction and conspiracy

to possess with intent to distribute five kilograms or more of cocaine while aboard

a vessel subject to U.S. jurisdiction, Julio Santana appeals the district court’s

imposition of 135-month concurrent sentences. Specifically, Santana argues on

appeal that the district court erred in denying him a mitigating-role reduction

because it only considered his role relative to the charged codefendants in this case

and did not consider his role relative to the conduct of all the uncharged

coconspirators who organized and profited from the drug trafficking venture.

Santana points out that his role was nothing more than that of a courier, that he did

not actually receive, nor did he believe that he would share in, any of the drug

proceeds, and that various individuals who were equally responsible for the

commission of the instant offense have not been arrested or prosecuted.

Additionally, Santana asserts that the court failed to consider the amount of money

that he was paid for his involvement in the conspiracy, his lack of equity interest in

the drugs, his nonexistent role in the planning of the instant offense, and his role in

the overall distribution of the cocaine.

      The U.S. Sentencing Guidelines permit a court to decrease a defendant’s

offense level by four levels if it finds that the defendant was a “minimal

participant” in the criminal conspiracy, or by two levels if it finds that the



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defendant was a “minor participant” in the criminal activity. U.S. Sentencing

Guidelines Manual § 3B1.2(a), (b) (2007). “The proponent of the downward

adjustment . . . always bears the burden of proving a mitigating role in the offense

by a preponderance of the evidence.” United States v. Rodriguez De Varon, 175

F.3d 930, 939 (11th Cir. 1999) (en banc). We review the district court’s

interpretation of the Sentencing Guidelines de novo, but we must accept the court’s

factual findings unless they are clearly erroneous. United States v. Jordi, 418 F.3d

1212, 1214 (11th Cir. 2005). Specifically, we review the district court’s

determination of a defendant’s role in the offense only for clear error. See

Rodriguez De Varon, 175 F.3d at 937, 945. “So long as the basis of the trial

court’s decision is supported by the record and does not involve a misapplication

of a rule of law, we believe that it will be rare for an appellate court to conclude

that the sentencing court’s determination is clearly erroneous.” Id. at 945.

       In Rodriguez De Varon, we identified two principles that should inform the

district court’s determination of whether the defendant’s role in an offense entitles

him to a mitigating-role reduction. Id. at 940, 945. First, and most importantly,

“the district court must measure the defendant’s role against the relevant conduct

for which [he] has been held accountable” at sentencing. Id. at 940. That is, “the

district court must assess whether the defendant is a minor or minimal participant



                                           3
in relation to the relevant conduct attributed to the defendant in calculating [his]

base offense level.” Id. at 941. Thus, in the drug courier context, a courier “cannot

prove that [he] is entitled to a minor role adjustment simply by pointing to some

broader criminal scheme in which [he] was a minor participant but for which [he]

was not held accountable.” Id. Although courier status alone neither precludes nor

establishes minor participation in an offense, “when a drug courier’s relevant

conduct is limited to [his] 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.

      Second, although we have acknowledged that the first method of analysis

will be dispositive in many cases, the district court may also measure a defendant’s

culpability against that of other participants in a conspiracy. Id. at 945. However,

a district court is limited to considering only those participants who are identifiable

by the evidence and who were involved in the relevant conduct attributed to the

defendant. Id. at 944. “The conduct of participants in any larger criminal

conspiracy is irrelevant.” Id. Furthermore, a defendant is not entitled to a minor-

role reduction merely because he demonstrates that his role in the relevant conduct

was less than that of other identifiable participants; oftentimes, no participants play

a minor role. Id. To receive a mitigating-role reduction, the defendant must prove



                                           4
that he was substantially less culpable than most other participants in the relevant

conduct. Id.; U.S. Sentencing Guidelines Manual § 3B1.2 cmt. n.3(A) (2007).

      After carefully reviewing the record and considering the parties’ briefs, we

discern no reversible error. The relevant conduct for which Santana was held

accountable at sentencing only concerned the 2,500 kilograms of cocaine that

ultimately ended up on board a fishing boat, the Don Juan K, along with Santana

and the other conspirators. The evidence supports the district court’s conclusion

that Santana’s role – as a paid crewman of the “go fast” boat that initially

transported this large shipment of drugs – constitutes an integral part in the

conspiracy to possess the drugs with the intent to distribute them. Santana

acknowledged that he could not distinguish his conduct from that of his fellow

crew members, and he is no less culpable, let alone substantially less culpable, than

any other discernable participants in this conspiracy. We may not, as Santana

urges, compare his role to that of any individuals involved in a larger drug

trafficking conspiracy that extends beyond this one sizeable shipment. The district

court did not clearly err in denying Santana a mitigating-role reduction, and

accordingly, we affirm.

      AFFIRMED.




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