                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                                                U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                       APR 9, 2010
                              No. 09-12007             JOHN LEY
                          Non-Argument Calendar          CLERK
                        ________________________

                 D. C. Docket No. 08-00459-CR-T-33-TBM

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

JHON JAIRO BADILLO ABADIA,
a.k.a. Badillo Abadia Jhon-Jairo,
a.k.a. Johnjairo Badilo Abadia,

                                                          Defendant-Appellant.

                        ________________________

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

                               (April 9, 2010)

Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:
      Jhon Jairo Badillo Abadia appeals his 135-month sentences for conspiracy

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

a vessel, and aiding and abetting the possession with intent to distribute five

kilograms or more of cocaine while aboard a vessel, in violation of 18 U.S.C. § 2,

21 U.S.C. § 960(b)(1)(B)(ii); 46 U.S.C. §§ 70503(a), 70506(a). On appeal,

Badillo Abadia argues that he was entitled to a minor-role reduction to his offense

level, because he was merely a crewman on the boat transporting the drugs and

therefore played a minor role in the overall conspiracy. He also argues that his

sentences were substantively unreasonable.



                          I. MINOR-ROLE REDUCTION

      A district court’s determination of a defendant’s role in an offense

constitutes a factual finding to be reviewed only for clear error. United States v.

Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The

defendant bears the burden of proving, beyond a preponderance of the evidence,

that he is entitled to a role reduction. Id. at 939.

      The Sentencing Guidelines provide for a two-level reduction for a minor

participant, which 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

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and comment (n. 5). The district court applies a two-part analysis to determine

whether to award a downward adjustment. De Varon, 175 F.3d at 940-41. “First,

and most importantly, the district court must measure the defendant’s role against

the relevant conduct for which [he] was held accountable at sentencing; we

recognize that in many cases this method of analysis will be dispositive.” Id. at

945. “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. Although a co-conspirator who was only a minor participant in the conspiracy

may be eligible for a role reduction, he would not be entitled to a reduction “where

the relevant conduct attributed to [him] is identical to [his] actual conduct.” Id. at

941. Therefore, a co-conspirator does not establish eligibility for a role reduction

merely “by pointing to some broader criminal scheme in which [he] was a minor

participant but for which [he] was not held accountable.” Id.

      Here, Badillo Abadia was convicted of charges related to the possession of

1,770 kilograms of cocaine, i.e. his actual conduct. Because he was not held

accountable for any actions except those he actually committed, the conduct of

others involved in the broader conspiracy was irrelevant. Therefore, the court did

not clearly err by concluding that he was not entitled to a minor-role reduction.




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        II. REASONABLENESS OF BADILLO ABADIA’S SENTENCE

      In United States v. Booker, the Supreme Court held that sentences are to be

reviewed for “unreasonable[ness].” 543 U.S. 220, 261, 125 S. Ct. 738, 765-66

(2005). In so reviewing a sentence, we “merely ask[] whether the trial court

abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.

2008) (quotation removed). The burden of establishing that the sentence is

unreasonable lies with the party challenging the sentence. Id.

      Pursuant to Gall v. United States, appellate review for reasonableness is a

two-step process. 552 U.S. 38, 128 S. Ct. 586 (2007). First, we “must . . . ensure

that the district court committed no significant procedural error.” Pugh, 515 F.2d

at 1190. Second, we must consider the substantive reasonableness of the sentence.

Id.

      Section 3553(a) provides that district courts must consider: (1) the

applicable Guideline range; (2) the nature and circumstances of the offense; (3)

the history and characteristics of the defendant; (4) the need for the sentence

imposed to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense; (5) the need for adequate

deterrence to criminal conduct; (6) protection of the public from further crimes of

the defendant; and (7) the need to avoid unwarranted sentencing disparities. See

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18 U.S.C. § 3553(a)(1)-(6). “The weight to be accorded any given § 3553(a)

factor is a matter committed to the sound discretion of the district court, and we

will not substitute our judgment in weighing the relevant factors.” United States

v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotations and alterations

omitted).

      “[A]n acknowledgment by the district court that it has considered the

defendant’s arguments and the factors in section 3553(a) is sufficient under

Booker.” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). “[T]here is

a range of reasonable sentences from which the district court may choose, and

when the district court imposes a sentence within the advisory Guideline range, we

ordinarily expect that choice to be a reasonable one.” Id. at 788.

      In imposing Badillo Abadia’s sentences, the court states that it had

considered the Guidelines and the § 3553(a) factors, and it explicitly discussed the

seriousness of the offense and the need to promote respect for the law, provide

punishment, deter criminal conduct, and protect the public. To the extent that

Badillo Abadia contends that the court created an unwarranted sentencing

disparity by denying him a minor-role reduction, his contention is without merit

because, as we discussed above, the district court properly denied him that

reduction. Although Badillo Abadia contends that shorter sentences would have

                                          5
had the same deterrent effect, the court was entitled to conclude that his offense

merited sentences within the Guidelines range. Evaluating the record as a whole,

nothing suggests that the sentences imposed were unreasonable.

      Upon review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.1




      1
             Appellant’s request for oral argument is DENIED.

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