                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            MARCH 7, 2007
                              No. 06-11444                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 05-00352-CR-T-23-TBM

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                    versus

CALIXTO JOSE GONZALEZ PADILLA,

                                                      Defendant-Appellant.


                        ________________________

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

                               (March 7, 2007)

Before ANDERSON, DUBINA, and CARNES, Circuit Judges.

PER CURIAM:

     Calixto Jose Gonzalez Padilla appeals his concurrent 135-month sentences
for conspiracy to possess and possession with intent to distribute five or more

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

violation of 46 U.S.C. §§ 1903(a),(g), and (j), 21 U.S.C. § 960(b)(1)(B)(ii), and 18

U.S.C. § 2. Gonzalez Padilla argues on appeal that the district court erred in

refusing to grant a minor role reduction.

      We review the district court’s determination of a defendant’s role in an

offense for clear error. United States v. De Varon, 175 F.3d 930, 938 (11th Cir.

1999) (en banc). The district court has “considerable discretion in making this

fact-intensive determination.” United States v. Boyd, 291 F.3d 1274, 1277-78

(11th Cir. 2002). The defendant bears the burden of proving his minor role by the

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

defense counsel alone may not be a sufficient basis on which to resolve a disputed

sentencing issue. See United States v. Kapelushnik, 306 F.3d 1090, 1095 (11th

Cir. 2002) (holding that allegations by defense counsel were an insufficient basis

on which to grant a downward departure under U.S.S.G. § 5K2.0).

      In determining a defendant’s role, the district court must first “measure the

defendant’s role against [his] relevant conduct.” De Varon, 175 F.3d at 934. We

have not established a per se rule as to whether a drug courier is or is not entitled to

a minor role reduction but we have said that “when a drug courier’s relevant



                                            2
conduct is limited to [his] 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 942-43. Furthermore, in the drug courier context, “the amount

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

[his] relevant conduct” and, in some cases, could be dispositive. Id. at 943.

      Although analysis under the first principle may be dispositive in the court's

determination of the defendant's role, the district court may also measure the

defendant's culpability in comparison to that of other participants in the relevant

conduct attributed to the defendant. Id. at 944. When measuring a defendant’s

conduct against other participants’ conduct, a district court may consider only

those participants who are identifiable by the evidence and who were involved in

the relevant conduct for which the defendant was convicted. Id. “The fact that a

defendant’s role may be less than that of other participants engaged in the relevant

conduct may not be dispositive of [his] role in the offense, since it is possible that

none are minor or minimal participants.” Id. “[T]he district court must determine

that the defendant was less culpable than most other participants in [his] relevant

conduct.” Id. (emphasis in original).

      Here, Gonzalez Padilla’s relevant conduct was identical to his actual

conduct, a large amount of cocaine (over three tons) was involved, and, except for



                                           3
the captain, nothing in the record indicated that Gonzalez Padilla was less culpable

than the other crew members on the vessel. Thus, he was not less culpable than the

other participants in the conspiracy and the district court’s denial of a role

reduction was not clearly erroneous. Accordingly, we affirm.

      AFFIRMED.1




      1
          Gonzalez Padilla’s request for oral argument is denied.

                                                4
