                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                April 19, 2006
                               No. 05-14003                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 05-20103-CR-JEM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

TOYA DIONNE RAMEY,

                                                           Defendant-Appellant.


                         ________________________

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

                               (April 19, 2006)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     On January 20, 2005, appellant arrived at Miami International Airport
aboard an American Airlines flight from Kingston, Jamaica. A drug dog alerted to

her person, and federal agents searched her. She was carrying a package

containing 326 grams of cocaine. A federal grand jury thereafter returned a two-

count indictment charging her in Count 1 with importing a substance containing a

detectable amount of cocaine in violation of 21 U.S.C. §§ 952(a) and 960(b), and

in Count 2 with possessing such substance with intent to distribute in violation of

21 U.S.C. § 841(a)(1). Appellant plead guilty under a plea agreement to the Count

1 offense, and the district court sentenced her to a prison term of 33 months. She

now appeals her sentence.

      Appellant asks us to vacate her sentence and remand the case for

resentencing on two grounds: (1) the district court erred in refusing to grant a

downward adjustment from the prescribed Guidelines sentence range under

U.S.S.G. § 5K2.12; and (2) the court clearly erred in refusing to reduce her offense

level under U.S.S.G., § 3B1.2. We consider these grounds in turn.

      Section 5K2.12 authorizes the court to depart downward “[i]f the defendant

committed the offense because of serious coercion, blackmail or duress, under

circumstances not amounting to a complete defense.” The problem appellant faces

in pursuing her first ground that the court erred in applying § 5K2.12 is that we

lack jurisdiction to review a district court’s refusal to depart downward unless the



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district court erroneously believed that it lacked authority to depart. United States

v. Adams, 316 F.3d 1196, 1197 (11th Cir. 2003). In this case, the court was well

aware of its authority to depart; thus, we lack jurisdiction to consider appellant’s

first ground.

      Appellant claims that the court erred in considering whether to grant her §

3B1.2 relief because it applied a per se preclusive rule instead of the two-part

analysis established in United States v. DeVaron, 175 F.3d 930 (11th Cir. 1999).

Section 3B1.2 provides for a two to four-level decrease in offense level based on a

defendant’s role in the offense. U.S.S.G. § 3B1.2. A defendant can receive a four-

level reduction if determined to be a minimal participant in the offense, a two-level

reduction if a minor participant, and a three-level reduction if her role falls between

a minimal and minor participant. Id. The application notes to § 3B1.2 provide that

a minimal participant is a defendant “who plays a minimal role in concerted

activity” and is “plainly among the least culpable of those involved in the conduct

of a group.” U.S.S.G. § 3B1.2, App. Note 4. A minor participant is a defendant

“who is less culpable than most other participants, but whose role could not be

described as minimal.” U.S.S.G. § 3B1.2, App. Note 5. The commentary further

indicates that a defendant “who is convicted of a drug trafficking offense, whose

role in that offense was limited to transporting or storing drugs and who is



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accountable under § 1B1.3 only for the quantity of drugs the defendant personally

transported or stored is not precluded from consideration for an adjustment under

this guideline.” U.S.S.G. § 1B1.3, App. Note 3(A).

      In considering a defendant’s role in an offense, a district court first must

“measure the defendant’s role against the relevant conduct for which she was held

accountable at sentencing.” Id. at 945. “[I]n many cases, this method of analysis

will be dispositive.” Id. “Second, the district court may also measure the

defendant’s role against the other participants, to the extent that they are

discernable, in that relevant conduct.” Id.

      The proponent of the downward adjustment has the burden of proving a

mitigating role in an offense by a preponderance of the evidence. Id. at 939. “[A]

defendant’s status as a drug courier does not alter the principle that the district

court [first] must assess the defendant’s role in light of the relevant conduct

attributed to her.” Id. at 942. “[W]hen a drug courier’s relevant conduct is limited

to her 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 942-943.

      The district court’s determination that appellant did not play a minor role in

her offense was not clearly erroneous because she played an essential role by



                                            4
transporting the drugs in to the United States. Given this circumstance, her

sentence is due to be, and is,

      AFFIRMED.




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