                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-12793         ELEVENTH CIRCUIT
                                                    JANUARY 15, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                      ACTING CLERK

                    D. C. Docket No. 08-21040-CR-WPD

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

RIGAUD ANDRE,

                                                          Defendant-Appellant.


                        ________________________

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

                             (January 15, 2010)

Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:

     Rigaud Andre (“Andre”) appeals his 121-month sentence after pleading
guilty to importing more than 500 grams of cocaine into the United States, in

violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(B). He argues that: (1) his sentence

is unreasonable because the district court (a) improperly considered the disparity

between the sentence Andre could receive in federal court versus state court, and

(b) the district court failed to give adequate consideration to the need to avoid

unwarranted sentencing disparities; and (2) the district court erred in denying his

request for a minor role reduction.

                                           I.

      We review a sentence imposed by a district court for reasonableness. Gall v.

United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). When reviewing the

reasonableness of a sentence, we first must “ensure that the district court

committed no significant procedural error.” Id. After we determine that the

district court’s sentencing decision is procedurally sound, we review the

substantive reasonableness of the sentence under an abuse of discretion standard.

Id. A sentence may be substantively unreasonable if the district court bases the

sentence on impermissible factors or fails to consider pertinent 18 U.S.C. § 3553(a)

factors. United States v. Pugh, 515 F.3d 1179, 1191–92 (11th Cir. 2008) (citation

omitted). Moreover, “[t]he weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court, and [this Court] will



                                           2
not substitute [its] judgment in weighing the relevant factors.” United States v.

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

omitted). Since we review the totality of the circumstances, a district court need

not discuss each § 3553(a) factor. Pugh, 515 F.3d at 1191 n.8; United States v.

Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam) (“an acknowledgment by

the district court that it has considered the defendant’s arguments and the factors in

Section 3553 is sufficient”).

      The appellant has the burden of establishing that the sentence is

unreasonable in light of the record and the § 3553(a) factors. Talley, 431 F.3d at

788. While a sentence within the United States Sentencing Guidelines range

(“Guideline”) is not per se reasonable, we ordinarily expect such a sentence to be

reasonable. Id.

A.    Andre’s State and Federal Sentence Comparison Argument

      Andre argues that his sentence was unreasonable because the district court

gave undue weight to the sentence he could have received in state court while

discussing the 18 U.S.C. § 3553(a)(6). In support of his argument, Andre cites to

our opinion in United States v. Searcy, 132 F.3d 1421 (11th Cir. 1998) (per

curiam) (holding that the district court did not err when it “refused to depart from

Searcy’s applicable [G]uidelines range on the basis of the punishment that would



                                           3
be imposed in state court”). Searcy however, does not specifically prohibit a

district court from simply mentioning a state court sentence. See id. We have not

held that any reference to a state court sentence is completely forbidden.

Additionally, the record does not suggest that the district court imposed a sentence

based on state court requirements. Rather, the record reflects that Andre’s sentence

was based on the large quantity of cocaine involved, Andre’s “supervisory

responsibility” over another drug smuggler’s cocaine, Dwayne Nash (“Nash”), and

the fact that Andre had “obstructed justice.” Tr. 80–81. Therefore, Andre has

failed to establish that his sentence is unreasonable.

B.    Andre’s Section 3553(a)(6) Argument

      Andre argues that the district court failed to adequately consider the

disparity between his sentence and Nash’s sentence. He argues, inter alia, that

because it undisputed that Nash and Andre were convicted of the exact same crime,

the district court erred when it imposed a more harsh sentence on Andre than Nash.

      Pursuant to § 3553(a), one of the factors the sentencing court must consider

is the “need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6). Because the “avoidance of unwarranted [sentencing] disparities was

clearly considered by the Sentencing Commission when setting the Guidelines



                                           4
ranges,” a district court necessarily gives weight and consideration to the need to

avoid unwarranted sentencing disparities when it correctly calculates and carefully

reviews the Guidelines range. Gall, 552 U.S. at 54, 128 S. Ct. at 599. “There is no

unwarranted disparity when the sentence the cooperating defendant receives is

substantially shorter” than sentence of a defendant who does not provide assistance

to the government. See United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir.

2009) (citation and quotation omitted).

      The district court accurately determined the applicable Guidelines range, and

sentenced Andre within that range.

      Next, we consider whether Andre’s sentence is reasonable. After review, the

record does not support Andre’s contention that his sentence is unreasonable in

comparison with Nash under 3553(a)(6). In light Section 3553(a)(6), the district

court expressly found that Andre and Nash are not similar, but exemplified

different conduct because Nash provided “substantial assistance” to the

government during the investigation. Tr. 79–80. Whereas Nash cooperated with

the government and helped law enforcement build the case against Andre, the

district court noted that Andre did not provide any assistance to the government.

In consideration of the § 3553(a)(6) factor, the district court articulated the

following explanation:



                                           5
             there are differences between Mr. Nash and Mr. Andre.
             Mr. Nash did perform substantial assistance. But for his
             naming Mr. Andre as a mule on the plane, the
             [g]overnment very well may not have charged Mr.
             Andre, may not have held onto him long enough for the
             surveillance photos and the janitors to come up with
             other evidence that made the case against Mr. Andre
             overwhelming.

               Tr. 79–80.

At the sentencing hearing, the transcript reflects that the government explained that

without Nash’s cooperation, it “would never have arrested Mr. Andre because he

had dumped all of the cocaine” that he was carrying into the trash. Doc. 44 at 14.

Because Nash and Andre did not engage in similar conduct, Andre has failed to

show that there is a true disparity. The record illustrates that the district court

specifically relied upon these differences in imposing a higher sentence upon

Andre. Indeed, Andre’s within-range sentence is expected to be reasonable, and

Andre has failed to show that it was unreasonable in light of the record and the

§ 3553(a) factors. Talley, 431 F.3d at 788. Accordingly, we find that the district

court gave adequate consideration to the need to avoid unwarranted sentencing

disparities, and any sentencing disparity that resulted between Nash’s and Andre’s

sentences was not unwarranted.

                                           II.

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

                                            6
finding of fact to be reviewed only for clear error. United States v. Rodriguez De

Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). § 3B1.2 of the Guidelines, if

a defendant was a minor participant in any criminal activity, a two-level reduction

applies. U.S.S.G. § 3B1.2(b). The defendant bears the burden of proving a

mitigating role by a preponderance of the evidence. Rodriguez De Varon, 175 F.3d

at 939. A final determination of the defendant’s role in the offense is the only

specific factual finding that a district court is required to make. Id. at 940.

Notwithstanding our deference to the district court’s discretion, the district court’s

ultimate determination of the defendant’s role in the offense should be informed by

two principles discerned from the Guidelines: (1) the defendant’s role in the

relevant conduct for which he has been held accountable at sentencing, and (2) his

role compared to that of other participants, to the extent that they are discernable,

in his relevant conduct. Id. at 940, 945. Relevant conduct is the conduct that was

used to determine the base offense level. Id. at 941.

      Andre argues that the district court erred in denying his request for a minor

role reduction. A review of the record illustrates that the district court did not

commit clear error when it concluded that Andre played more of a role than Nash

in a common plan or scheme to smuggle 8 kilograms of cocaine into the United

States from Haiti. Tr. 75–77. The district court particularly noted that it believed



                                            7
“Mr. Andre’s role was a little more than a typical mule.” Tr. 77. Subsequently, it

overruled Andre’s objection to a lack of a minor role reduction. Tr. 77.

      We conclude that the district court did not clearly err in denying Andre’s

request for a minor role reduction because it found that Andre had a supervisory

role over Nash.

      For the foregoing reasons, Andre has failed to meet his burden to show that

his within-range sentence was unreasonable, and the district court did not clearly

err in failing to apply a minor role reduction. Accordingly, we affirm.

      AFFIRMED.




                                          8
