                                                       [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________             FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                No. 05-12613
                                                            April 17, 2006
                            Non-Argument Calendar           THOMAS K. KAHN
                          ________________________              CLERK

                    D. C. Docket No. 03-00047-CR-T-24-EAJ

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                    versus

LIBISON ANGULO HERNANDEZ,

                                                       Defendant-Appellant.
                          ________________________

                                No. 05-13185
                            Non-Argument Calendar
                          ________________________

                    D. C. Docket No. 03-00047-CR-T-24-EAJ

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                    versus

WILMER ADOLFO CASTRO,
a.k.a. Wilmer Valentierra Castro,

                                                       Defendant-Appellant.
                             ________________________

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

                                     (April 17, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

       In these consolidated appeals, Libison Angulo Hernandez and Wilmer

Adolfo Castro each challenge two concurrent 135-month sentences, which were

imposed after they pled guilty to conspiring to possess with intent to distribute 5

kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of

the United States, in violation of 46 App. U.S.C. §§ 1903(a), (g), (j), and 21 U.S.C.

§ 960(b)(1)(B)(ii), and possessing with intent to distribute 5 kilograms or more of

cocaine while aboard a vessel subject to the jurisdiction of the United States, in

violation of 46 App. U.S.C. §§ 1903(a), (g), 18 U.S.C. § 2, and 21 U.S.C.

§ 960(b)(1)(B)(ii). On appeal, each defendant argues that the district court erred

by denying a minor-role adjustment to his sentence. Castro also challenges his

sentence as unreasonable under United States v. Booker, 543 U.S. 220 (2005), and

18 U.S.C. § 3553(a).1 After careful review, we affirm.


       1
       We have jurisdiction to review the reasonableness of Castro’s sentence, pursuant to 18
U.S.C. § 3742. See United States v. Martinez, 434 F.3d 1318 (11th Cir. 2006) (rejecting

                                             2
        We review a district court’s factual findings regarding a defendant’s role in

the offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.

1999) (en banc). “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.” De Varon, 175 F.3d at 945. We review the

ultimate sentence imposed by the district court for reasonableness. United States v.

Talley, 431 F.3d 784, 785 (11th Cir. 2005). In making our reasonableness review,

we consider the final sentence, in its entirety, in light of the § 3553(a) factors.

See United States v. Winningear, 422 F.3d 1241, 1245 (11th Cir. 2005) (“We do

not apply the reasonableness standard to each individual decision made during the

sentencing process; rather, we review the final sentence for reasonableness.”). And


government’s threshold argument that this Court lacks jurisdiction under 18 U.S.C. § 3742(a) to
review a sentence within a correctly-calculated guideline range for reasonableness; concluding that
“a post-Booker appeal based on the ‘unreasonableness’ of a sentence, whether within or outside the
advisory guidelines range, is an appeal asserting that the sentence was imposed in violation of law
pursuant to § 3742 (a)(1)”).

         To the extent the defendants assert a Booker Sixth Amendment violation, we can find no
error. It is now well-established that there is no constitutional Booker error when, as here, the district
court applied the Guidelines in an advisory fashion. See United States v. Chau, 426 F.3d 1318 (11th
Cir. 2005) (holding that, when the district court applies the Guidelines in an advisory manner, it does
not violate a defendant’s Sixth Amendment rights under Booker by applying extra-verdict
enhancements); see also United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.) (explaining
that Booker error “is not that there were extra-verdict enhancements -- enhancements based on facts
found by the judge that were not admitted by the defendant or establish by the jury verdict -- that
led to an increase in the defendant's sentence. The error is that there were extra-verdict
enhancements used in a mandatory guidelines system”), cert. denied, 125 S. Ct. 2935 (2005).

                                                    3
our “[r]eview for reasonableness is deferential.” 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 the light of both th[e]

record and the factors in section 3553(a).” Id.

      The Guidelines provide for a two-level decrease when the defendant is a

minor participant in any criminal activity. See U.S.S.G. § 3B1.2(b).        A minor

participant is defined as “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,

comment. (n.3). To determine whether the adjustment applies, a district court first

should measure the defendant’s role against the conduct for which he has been held

accountable. See De Varon, 175 F.3d at 934. With regard to drug couriers, this

Court has indicated that its holding in De Varon “[did] not create a presumption

that drug couriers are never minor or minimal participants, any more than that they

are always minor or minimal,” but “[r]ather . . . [established] only that the district

court must assess all of the facts probative of the defendant’s role in [his] relevant

conduct in evaluating the defendant’s role in the offense.” United States v. Boyd,

291 F.3d 1274, 1277 (11th Cir. 2002). Moreover, also in drug courier cases, “the

amount of drugs imported is a material consideration in assessing a defendant’s




                                          4
role in [his] relevant conduct” and “may be dispositive -- in and of itself -- in the

extreme case.” De Varon, 175 F.3d at 943.

       Second, where there is sufficient evidence, a court also may measure the

defendant’s conduct against that of other participants in the criminal scheme

attributed to the defendant. See id. In making this inquiry, a district court should

look to other participants only to the extent that they (1) are identifiable or

discernable from the evidence, and (2) were involved in the relevant conduct

attributed to the defendant.           See id. at 944 (stating that “[t]he conduct of

participants in any larger criminal conspiracy is irrelevant”). “[W]here the relevant

conduct attributed to a defendant is identical to [his] actual conduct, [he] 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. at 941. “The defendant bears the burden of proving

his minor role by a preponderance of the evidence.” Boyd, 291 F.3d at 1277.

       In the present case, the defendants argue that the district court erred by

denying minor-role adjustments.2             Hernandez highlights that he was only the

       2
         For the first time on appeal, Hernandez also suggests that the district court’s minor-role
decision was based, in part, on a disposition to treat Hernandez as a repeat offender even though he
had no prior convictions. Simply put, the district court’s reasons for denying the adjustment related
solely to Hernandez’s relevant offense conduct. Our review of the sentencing transcript reveals no
indication that the district court’s imposition of sentence was in any way based on assuming, despite
Hernandez’s lack of a criminal record, that Hernandez was a repeat offender. Accordingly, we find
no plain error on this basis.

                                                 5
mechanic on the boat and asserts that he was under the command of the boat

captain and, therefore, could not be a “major player” in the cocaine-smuggling

scheme. Similarly, Castro states that he was only a “mule” for more significant

participants in a larger conspiracy and that, as a crewman, he was under the control

of the boat’s captain. We are unpersuaded by any of these arguments.

      The record supports the district court’s finding that the relevant conduct

attributed to Hernandez and Castro was not minor, and we hold that the district

court did not clearly err in denying both defendants a minor-role adjustment. With

respect to the first prong of the De Varon analysis, the district court held both

defendants accountable only for the possession of 1,580 kilograms of cocaine,

which was the amount of cocaine found on the vessel when it was intercepted with

the defendants onboard. Moreover, the sheer quantity of drugs is evidence that a

minor-role reduction was not warranted. See De Varon, 175 F.3d at 943 (noting

that the “amount of drugs is a relevant factor and recogniz[ing] that under some

circumstances it may be dispositive”). Because they were held responsible only

for the amount of cocaine they personally smuggled, which we note was a

significant quantity, the defendants’ relevant conduct was sufficient to support the




                                         6
district court’s factual finding that they played essential roles in the importation of

1,580 kilograms of cocaine.3

       Turning to Castro’s reasonableness challenge to his sentence, our inquiry is

guided by the factors outlined in 18 U.S.C. § 3553(a). See Talley, 431 F.3d at 786;

Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). The § 3553(a) factors take into

account

        (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.

Talley, 431 F.3d at 786. While a sentence within the advisory Guidelines range,

such as Castro’s sentence, is not per se reasonable, we ordinarily expect such a

sentence to be reasonable.          Id. at 787-88.       The burden of establishing that the


       3
          Given the defendants’ failure to carry their burden on the first prong, we need not reach
the second De Varon prong, but we nevertheless observe that this second principle would also defeat
the award of minor-role reductions here. With the possible exception of the boat’s captain,
Hernandez’s and Castro’s conduct was identical to that of their codefendants, who were other crew
members. It is well-settled that the conduct of others who were involved in the overall scheme of
transporting and selling cocaine -- the organizers or recruiters or those with an equity interest in the
cocaine -- is irrelevant to the assessment of the defendants’ roles, as they were not charged with a
larger conspiracy to import or distribute drugs, and, in any event, the other individuals are not
identifiable from the evidence. See DeVaron, 175 F.3d at 944.


                                                   7
sentence is unreasonable in light of the record and the § 3553(a) factors lies with

the party challenging the sentence. Id. at 788.

      Here, we readily conclude that Castro’s sentence was reasonable. Castro’s

concurrent 135-month sentences were at the low end of the Guidelines range and

well below the statutory maximum of life imprisonment.             At the sentencing

hearing, the district court acknowledged the advisory nature of the Guidelines and

the § 3553(a) factors. Moreover, our review of the district court’s deliberations

reveals consideration of several § 3553(a) factors, apart from the Guidelines range.

See Martinez, 434 F.3d at 1322-23 (affirming appellant’s sentence against

reasonableness challenge and noting that the district court applied the Guidelines

as advisory and its deliberations reflected a consideration of the 18 U.S.C. 3553(a)

factors); United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (affirming

sentence as reasonable and noting that the district court calculated the correct

Guidelines range, treated the range as advisory, considered the § 3553(a) factors,

and imposed a sentence at the low end of the Guidelines range).

      As for his claim that the district court did not adequately consider all of the §

3553(a) factors, we have held that “nothing in Booker or elsewhere requires the

district court to state on the record that it has explicitly considered each of the §

3553(a) factors or to discuss each of the § 3553(a) factors.” Scott, 426 F.3d at



                                          8
1329.   Accordingly, the district court’s failure to expressly reference each and

every one of the § 3553(a) factors does not constitute error under Booker. In any

event, at the sentencing hearing, the district court expressly stated that it had

considered all of the factors in § 3553(a). Simply put, Castro’s sentence was not

unreasonable    and   is   fully   supported     by   the   district   court’s   sentencing

considerations and factual findings. Accordingly, we can discern no Booker error

in the district court’s sentencing scheme.

        AFFIRMED.




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