                                                 [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT                FILED
                   ________________________     U.S. COURT OF APPEALS
                                                  ELEVENTH CIRCUIT
                                                      March 27, 2008
                         No. 07-12512             THOMAS K. KAHN
                     Non-Argument Calendar            CLERK
                   ________________________

              D. C. Docket No. 06-00499-CR-T-23-MSS

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                             versus

ALENIO BONILLA-TELLO,

                                                 Defendant-Appellant.

                    ______________________

                         No. 07-12627
                     Non-Argument Calendar
                   ________________________

              D. C. Docket No. 06-00499-CR-T-23-MSS

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,


                             versus
JOSE MINA BRUNO-HERNANDEZ,

                                                                Defendant-Appellant.


                            ________________________

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

                                  (March 27, 2008)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Alenio Bonilla-Tello and Jose Mina Bruno-Hernandez appeal their sentences

imposed after their pleas of guilty to conspiracy and possession with intent to

distribute five kilograms or more of cocaine while on board a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a)

and (b); 21 U.S.C. § 960(b)(1)(B)(ii); and 18 U.S.C. § 2. Both Bonilla-Tello and

Bruno-Hernandez contend the district court erred at sentencing by denying them

mitigating-role reductions, and assert their sentences are unreasonable. In addition

to appealing their sentences, they have moved to adopt their co-conspirator’s

arguments that the district court lacked subject matter jurisdiction, and that the




                                           2
Maritime Drug Law Enforcement Act is unconstitutional. After review, we affirm

Bonilla-Tello’s and Bruno Hernandez’s convictions and sentences.

                                            I.

      Both Bonilla-Tello and Bruno-Hernandez assert they played minor roles in

the larger conspiracy because they were simply crew members on the vessel

carrying the cocaine. They contend the district court erred in denying them

mitigating-role reductions.

      Although the Sentencing Guidelines are advisory, a district court must

calculate the Guidelines range correctly and must consider it when determining a

defendant’s sentence. United States v. Crawford, 407 F.3d 1174, 1178-79 (11th

Cir. 2005). A district court’s determination of a defendant’s role in an offense is a

finding of fact, which we review for clear error. United States v. De Varon, 175

F.3d 930, 934 (11th Cir. 1999) (en banc).

      Section 3B1.2 of the Guidelines permits a mitigating-role adjustment to the

applicable Guidelines range for a defendant who is substantially less culpable than

the average participant due to a mitigating role. U.S.S.G. § 3B1.2, cmt. n.3. The

defendant bears the burden of establishing that his role was minimal or minor by a

preponderance of the evidence. De Varon, 175 F.3d at 939.




                                            3
      In determining whether a defendant meets the burden of demonstrating a

mitigating role, a district court examines (1) the defendant’s role based on the

relevant conduct for which he was held accountable and (2) the defendant’s role in

comparison to the other participants. Id. at 940. In the drug courier context,

relevant facts include, but are not limited to: the amount of drugs, their fair market

value, the amount of money to be paid to the courier, an equity interest in the

drugs, a role in planning the scheme, and the role in the distribution. Id. at 945.

The drug quantity “may be the best indication of the magnitude of the courier’s

participation,” and a drug courier’s role is not presumed to be minor. Id. at 943.

The defendant must establish that he played a minor role in the conduct for which

he has been found guilty and not just a minor role in the larger conspiracy. Id. at

941-942, 944. Therefore, the district court may only assess a defendant’s

culpability in comparison to “other participants in the relevant conduct,” i.e.,

participants who are “identifiable or discernable from the evidence,” and “who

were involved in the relevant conduct attributed to the defendant.” Id. at 944.

Furthermore, “[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 role in the

offense, since it is possible that none are minor or minimal participants.” Id.




                                           4
      With respect to the first prong of the DeVaron analysis, the record indicates

that Bonilla-Tello and Bruno-Hernandez were held accountable for possessing and

conspiring with others to distribute 2,700 kilograms of cocaine on board a vessel.

Although Bonilla-Tello and Bruno-Hernandez objected that they were not aware of

the actual quantity of drugs on the vessel, neither Bonilla-Tello nor Bruno-

Hernandez objected to the amount of drugs found on the vessel or to the facts in

the PSI. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005)

(holding a defendant admits facts when he does not object to the PSI’s factual

statements). With regard to Bonilla-Tello, the district court noted the seriousness

of attempting to bring a large quantity of cocaine into the United States, and stated

that “the quantity involved in this particular case also gravitates sternly away from

any downward adjustment at least for a minor role.” With regard to Bruno-

Hernandez, the court noted the relevant conduct did “not include other episodes

generated by the same international conspiracy.” The court also stated “the

quantity involved here virtually, if not absolutely, precludes the concept of minor

role,” and the quantity made it “extremely remote” that Bruno could show he was

“materially less culpable than similarly situated defendants or other crewmen.”

      Regarding the second prong of the De Varon analysis, the other participants

discernable from the evidence and involved in the relevant conduct are Bonilla-



                                           5
Tello’s and Bruno-Hernandez’s codefendants, the boat operator who started the

gasoline fire and later died, and the other injured crew members who were treated

in Colombia and not brought to the United States for prosecution. Bonilla-Tello

contends the district court should have evaluated his role in the broader conspiracy,

and suggests a crewman’s role in a boat case is generally minor. However, under

De Varon, the roles of participants in any larger conspiracy are irrelevant. De

Varon, 175 F.3d at 944. The record does not show that Bonilla-Tello’s role was

any different from any of the other crew members except, perhaps, the captain.

Moreover, this Court does not presume that a drug courier plays a minor role in a

drug distribution conspiracy, and has stated that the drug quantity is a significant

factor in determining the courier’s role. De Varon, 175 F.3d at 943.

      Regarding Bruno-Hernandez, again, the record does not show his role was

any different from any of the other crew members except, perhaps, the captain.

However, even though Bruno’s role may be less than that of the captain’s, Bruno-

Hernandez is not automatically entitled to a mitigating-role adjustment since it is

possible that none of the participants are minor. See De Varon, 175 F.3d at 944.

Moreover, this Court does not presume that a drug courier plays a minor role in a

drug distribution conspiracy, and has stated that the drug quantity is a significant

factor in determining the courier’s role. De Varon, 175 F.3d at 943.



                                           6
      Bonilla-Tello and Bruno-Hernandez bear the burden of proving by a

preponderance of the evidence that they were entitled to mitigating-role reductions,

but, based on the close convergence between Bonilla-Tello’s and Bruno-

Hernandez’s conduct and the conduct for which each was held accountable, they

have failed to show their roles were less culpable than the roles of other average

participants on the boat. See De Varon, 175 F.3d at 939, 944. Thus, the district

court did not clearly err in determining that neither Bonilla-Tello nor Bruno-

Hernandez qualified for a mitigating-role reduction.

                                          II.

      With regard to the unreasonableness of their sentences, Bonilla-Tello and

Bruno-Hernandez contend their sentences do not adequately reflect their need to

provide for their families, who live in poverty. After setting out the applicable

standard of review and relevant cases, we review their sentences in turn.

      We review the final sentences imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).

If we determine the district court committed no significant procedural error, we

then consider the substantive reasonableness of the sentences imposed under an

abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007).




                                           7
      Reasonableness review is deferential, and “there is a “range of reasonable

sentences from which the district court may choose.” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). “[T]he party who challenges the sentence bears the

burden of establishing that the sentence is unreasonable in light of both [the] record

and the factors in section 3553(a).” The § 3553(a) factors include:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Id. at 786 (citing 18 U.S.C. § 3553(a)). While the district court must consider the

§ 3553(a) factors, it is not required to discuss each factor. “[A]n acknowledgment

by the district court that it has considered the defendant’s arguments and the

factors in section 3553(a) is sufficient . . . .” Id. A lengthy discussion of the

§ 3553(a) factors is not required in the typical case, as long as the sentencing judge

“set[s] forth enough to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Rita v. United States, 127 S. Ct. 2456, 2468 (2007). Although we do

not apply a presumption of reasonableness to a within-Guidelines sentence, we will

                                            8
ordinarily expect a sentence within the Guidelines range to be reasonable. Talley,

431 F.3d at 788.

      With regard to the procedural reasonableness of Bonilla-Tello’s sentence,

the district court stated it had considered the advisory Sentencing Guidelines and

the § 3553(a) factors. Although the district court did not state each of the factors

individually, the record shows the court considered Bonilla-Tello’s arguments for a

below-range sentence on the basis of the 18 U.S.C. § 3553(a) factors. In particular,

the district court considered Bonilla-Tello’s individual and family circumstances,

the nature of the offense, the need for punishment, and the sentences of similarly

situated defendants. See 18 U.S.C. § 3553(a)(1), (2)(A), (6). The district court

also found the sentence was “sufficient but not greater than necessary to comply

with the statutory purposes of sentencing.” See 18 U.S.C. § 3553(a). Accordingly,

the district court’s consideration of the § 3553(a) factors was sufficient. See Rita,

127 S. Ct. at 2468; Talley, 431 F.3d at 786.

      Bonilla-Tello also has not established his sentence was substantively

unreasonable. His 135-month sentences are at the low end of the advisory

Guidelines range and below the statutory maximum of life imprisonment. 21

U.S.C. § 960(b)(1)(B)(ii). Therefore, this Court ordinarily would expect Bonilla-

Tello’s sentence to be reasonable. See Talley, 431 F.3d at 788. Bonilla-Tello



                                           9
asserts his case was not in the “mine run” of national cases and that, therefore, he

could show that an in-range sentence was not reasonable. However, he did not

present, either below or on appeal, any law or unusual facts to support his

argument. Indeed, the district court noted that Bonilla-Tello’s circumstances were

“tragic” but “typical” of similar cases in the division. Although there may be a

range of reasonable sentences under Bonilla-Tello’s circumstances, Bonilla-Tello

has not shown the district court abused its discretion in imposing a sentence at the

low end of the Guidelines range and well below the statutory maximum. See Gall,

128 S. Ct. at 597; Talley, 431 F.3d at 788.

      With regard to the procedural reasonableness of Bruno-Hernandez’s

sentence, the district court stated it had considered the Sentencing Guidelines “to

the extent applicable after United States v. Booker,” as well as the § 3553(a)

factors. Although the district court did not state each of the factors individually,

the record shows the court considered Bruno-Hernandez’s arguments for a below-

range sentence on the basis of the 18 U.S.C. § 3553(a) factors. In particular, the

district court considered Bruno-Hernandez’s individual and family circumstances,

the nature of the offense, the need for punishment, and the sentences of similarly

situated defendants. See 18 U.S.C. § 3553(a)(1), (2)(A), (6). The district court

also found the sentence was “sufficient but not greater than necessary to comply



                                          10
with the statutory purposes of sentencing.” See 18 U.S.C. § 3553(a). Accordingly,

the district court’s consideration of the § 3553(a) factors was sufficient. See Rita,

127 S. Ct. at 2468; Talley, 431 F.3d at 786.

      Bruno-Hernandez also has not established his sentences are substantively

unreasonable. Bruno-Hernandez’s 210-month sentences were at the low end of the

advisory Guidelines range, and below the statutory maximum sentence of life

imprisonment. 21 U.S.C. § 960(b)(1)(B)(ii). Because Bruno-Hernandez’s

sentences were within the Guidelines range, this Court ordinarily would expect the

sentence to be reasonable. Talley, 431 F.3d at 788. The district court noted that

Bruno-Hernandez’s higher sentence was a result of his higher criminal history but

was otherwise “essentially the same sentence” as in the many “multi-ton boat cases

over a period of years.” The district court also noted there was “nothing to

distinguish this case” from the others. The district court considered Bruno-

Hernandez’s arguments regarding his criminal history and found it was adequately

represented. Although there may be a range of reasonable sentences under Bruno-

Hernandez’s circumstances, Bruno has not shown the district court abused its

discretion in imposing a sentence at the low end of the Guidelines range and well

below the statutory maximum. See Gall, 128 S. Ct. at 597; Talley, 431 F.3d at 788.




                                          11
                                          III.

      Although Bonilla-Tello’s and Bruno-Hernandez’s attempted adoption of

Estada-Obregon’s arguments are arguably improper, we will exercise our

discretion and grant Bonillo-Tello’s motion to adopt, and consider Bruno-

Hernandez’s adoption in his reply brief. As we decided in the related case against

co-conspirator James Estrada-Obregon, the district court did not plainly err in

failing to sua sponte dismiss these cases on the basis that the vessel was not subject

to the jurisdiction of the United States, or on the basis that there was no nexus with

the United States. See United States v. Estrada-Obregon, No. 07-13517. In

addition, the co-conspirators’ remaining constitutional arguments are foreclosed by

our previous decisions. See id.

                                          IV.

      The district court did not clearly err in denying mitigating-role reductions

for Bonilla-Tello and Bruno-Hernandez, and the sentences are procedurally and

substantively reasonable. In addition, the district court did not plainly err in failing

to dismiss these cases for lack of jurisdiction or lack of nexus. Accordingly, we

affirm Bonilla-Tello’s and Bruno-Hernandez’s convictions and sentences.

      AFFIRMED.




                                           12
