                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-12436                ELEVENTH CIRCUIT
                                                           JANUARY 29, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                            ACTING CLERK

                   D. C. Docket No. 08-80105-CR-KAM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JERRISTON LAVON MASON,

                                                         Defendant-Appellant.


                       ________________________

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

                            (January 29, 2010)

Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Jerriston Lavon Mason appeals his sentence of 176 months of imprisonment

for possession with intent to distribute at least five grams of crack cocaine. The

district court did not clearly err by denying Mason’s request for a minor-role

reduction under U.S.S.G. § 3B1.2 because Mason did not meet his burden to show

that he played a minor role relative to the conduct attributed to him. Accordingly,

we AFFIRM.

                                I. BACKGROUND

      Mason was indicted for, and pleaded guilty to, one count of possession with

intent to distribute at least five grams of crack cocaine, 21 U.S.C. § 841(a)(1). R1-

159, 266. During a joint investigation by the Boynton Beach Police Department

(“BBPD”) and the Drug Enforcement Agency (“DEA”) into the distribution of

narcotics, law enforcement officers discovered a network of cocaine providers that

sold powder and crack cocaine. Law enforcement identified several individuals,

including Ronald Godfrey, Jr., who purchased large quantities of powder cocaine

to cook and store as cocaine base before selling the product to local dealers. R2 at

31-32. After a search of Mason’s residence revealed approximately 40 grams of

cocaine, Mason told law enforcement that he purchased the crack cocaine from

Godfrey. Id. at 30-31.




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      The probation officer first calculated a base offense level of 28 based on the

guideline for 21 U.S.C. § 841(a)(1), but based on two prior felonies, Mason was

sentenced as a career offender under § 4B1.1(a). Since the statutory maximum for

Mason’s possession with intent to distribute crack cocaine charge was 40 years, the

probation officer calculated an offense level of 34 pursuant to § 4B1.1(b). The

probation officer found that Mason was entitled to a two-level reduction for

acceptance of responsibility pursuant to § 3E1.1(a) and an additional one-level

decrease for assisting in the investigation by timely notifying the authorities of his

intention to plead guilty pursuant to § 3E1.1(b). In the PSI role assessment, the

probation officer did not recommend an upward or downward adjustment for

Mason’s role in the conspiracy. Mason’s final adjusted offense level was a 31 with

a criminal history category of VI, due to his career offender status, yielding a

sentence range of 188 to 235 months. The statutory minimum for Mason’s charge

is 5 years with a maximum of 40 years.

      Mason objected to the PSI and, at the sentencing hearing, requested a two-

level reduction. R3 at 3. Mason argued that because he was “at the bottom of the

food chain” in the conspiracy, he, unlike many of his co-conspirators, did not have

any information to provide in order to receive a § 5K1.1 or Rule 35(a) reduction

for substantial assistance, and that granting him a role adjustment would resolve



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any sentencing disparities. Id. at 3-6. Mason acknowledged that he was only

assessed with the drugs that he personally possessed. Id. at 6. The court stated that

if Mason had been assessed with all of the drugs involved in the conspiracy, he

would be a minor participant as compared to the whole conspiracy. Id. at 7.

However, the sentencing court denied the request for minor role reduction, finding

that the facts did not justify a finding of minor role because “if he’s only being

held responsible for the amount he had, then he’s not minor with respect to that

aspect of the conspiracy.” Id. The court then sentenced Mason to 176 months’

imprisonment and 4 years of supervised release. Id. at 12.

                                 II. DISCUSSION

      On appeal, Mason argues that the district court clearly erred in denying him

a two-level mitigating role reduction because he was a minor participant in an

overall conspiracy. Specifically, Mason argues that compared to his nine

identifiable co-defendants, who were involved in an overall criminal scheme

involving importing and distributing narcotics over the course of six months,

Mason himself was responsible for only one transaction during the course of the

conspiracy, making him less culpable than the average participant.

      A sentencing court's determination of a defendant's role in an offense

constitutes a factual finding that is reviewed for clear error. United States v.



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

bears the burden of proving by a preponderance of the evidence that he is entitled

to a mitigating 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, and comment. (n.5). The district court applies a two-

part analysis to determine whether to award a downward adjustment, first assessing

the defendant’s role in the criminal activity and then comparing the defendant’s

conduct to that of his cohorts. De Varon, 175 F.3d at 940-41, 944. “Only if the

defendant can establish that [he] played a relatively minor role in the conduct for

which [he] has already been held accountable – not a minor role in any larger

criminal conspiracy – should the district court grant a downward adjustment for

minor role in the offense.” Id. at 944.

      The district court did not clearly err in denying Mason’s request for a two-

level mitigating role reduction. Mason did not argue that he played a minor role in

the offense for which he pleaded guilty, possession with intent to distribute at least

five grams of crack cocaine. Instead, Mason accepted responsibility for the

amount of drugs in his possession and argued only that compared to other

individuals involved in the larger conspiracy, he was less culpable. The sentencing



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court made a factual finding that Mason was not entitled to a minor role reduction

because he was not assessed with the amount of drugs involved in the whole

conspiracy, but rather was only held accountable for the amount of drugs that he

actually possessed. R3 at 4-5, 7. We allow a mitigating role reduction only for a

defendant who proves by a preponderance of the evidence that he played a minor

role in the conduct that is actually attributed to him. De Varon, 175 F.3d at 944.

Mason failed to meet his burden of proof for the first part of the De Varon analysis

since he was not held accountable for offenses or amounts of drugs in the larger

conspiracy. 175 F.3d at 940-41. Thus, Mason was not entitled to a minor role

adjustment, and the court did not clearly err in denying his request.

                                III. CONCLUSION

      Because Mason failed to meet his burden of demonstrating that he played a

minor role relative to the conduct attributed to him, we hold the district court did

not clearly err by denying his request for a minor-role reduction pursuant to

U.S.S.G. § 3B1.2. Accordingly, we AFFIRM.




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