                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             SEPT 20, 2006
                              No. 05-16724                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 05-00297-CR-T-26-MSS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

GABRIEL ALFONSO ESCOBAR-RIVERA,

                                                          Defendant-Appellant.


                        ________________________

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

                            (September 20, 2006)

Before ANDERSON, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Gabriel Alfonso Escobar-Rivera appeals his 135-month sentence for
possession with intent to distribute 5 kilograms or more of cocaine while aboard a

vessel subject to the United States’s jurisdiction, 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), and conspiracy to

possess with intent to distribute 5 kilograms or more of cocaine while aboard a

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

§§ 1903(a), (g), & (j); and 21 U.S.C. § 960(b)(1)(B)(ii). Escobar-Rivera argues

that he should have received a minor-role reduction pursuant to U.S.S.G. § 3B1.2.

      We have held that a district court’s determination of a defendant’s role in an

offense is a finding of fact, to be reviewed for clear error.   United States v. De

Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). The guidelines allow a court

to decrease a defendant’s offense level by two points if the court finds the

defendant was a minor participant. U.S.S.G. § 3B1.2(b). A defendant is a minor

participant if he “is less culpable than most other participants, but whose role could

not be described as minimal.” U.S.S.G. § 3B1.2, comment. (n.5).

      The party seeking the downward departure bears the burden of establishing

that the defendant’s role was minor by a preponderance of the evidence. De

Varon, 175 F.3d at 939. In determining whether a mitigating role reduction is

warranted, a district court examines: (1) the defendant’s role against the relevant

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



                                            2
comparison to the other participants. Id. at 940. The first prong assesses the

defendant’s actual role in comparison to the relevant conduct. Id. The district

court may consider any and all facts probative of the defendant’s role. Id. at 943.

Only if the defendant can establish that he played a minor role in the conduct for

which he has already been held accountable, not just a minor role in any larger

conspiracy, should the district court grant a downward adjustment for a minor role

in the offense. Id. at 944. The second prong compares the defendant’s role to the

roles played by his co-participants. Id. “The conduct of participants in any larger

criminal conspiracy is irrelevant.” Id. Notably, “a defendant is not automatically

entitled to a minor-role adjustment merely because [he] was somewhat less

culpable than the other discernable participants,” especially as it is possible that no

co-conspirator is a minor participant Id.

      Escobar-Rivera pled guilty to possession and conspiracy to possess more

than 5 kilograms of cocaine, and admitted to the more than 2,400 kilograms of

cocaine transported in the offense when he did not object to the facts in the PSI.

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

defendant admits facts when he does not object to the PSI’s factual statements).

Escobar-Rivera was held accountable at sentencing for these facts. Based on the

close convergence between Escobar-Rivera’s conduct and the conduct for which he



                                            3
was held accountable, he has failed to meet the burden of the first prong. The

second prong compares the defendant’s role to the roles played by his co-

participants. De Varon, 175 F.3d at 944. Escobar-Rivera was one of many crew

members, each necessary to run the boat. Because Escobar-Rivera was a crew

member, like most of the other co-defendants, he was not less culpable than his co-

participants. The district court did not clearly err in determining that Escobar-

Rivera did not qualify for a minor-role reduction. Accordingly, its judgment is

      AFFIRMED.




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