            Case: 15-14923   Date Filed: 10/20/2016   Page: 1 of 7


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14923
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:15-cr-00097-JDW-TGW-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

versus

ALREDO HERRERA-VILLARREAL,
a.k.a. Alfredo Herrera-Villareal,

                                                          Defendant-Appellant.

                       ________________________

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

                             (October 20, 2016)



Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Alredo Herrera-Villarreal appeals his 135-month total sentence, imposed at

the bottom of the guidelines range after he pled guilty to one count of conspiring to

possess with intent to distribute 5 kilograms or more of cocaine while on board a

vessel, in violation of 46 U.S.C. §§ 70503(a), 70506(a), (b), and 21 U.S.C.

§ 960(b)(1)(B)(ii), and one count of possession with intent to distribute 5

kilograms or more of cocaine while on board a vessel, in violation of 46 U.S.C.

§§ 70503(a), 70506(a), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii). Herrera-

Villarreal first contends the district court clearly erred by not applying a

mitigating-role reduction pursuant to U.S.S.G. § 3B1.2. Second, he asserts his

sentence was procedurally unreasonable because the district court failed to

consider the 18 U.S.C. § 3553(a) factors, and failed to explain its sentence

sufficiently for appellate review. After review, 1 we affirm the district court.

                                       I. DISCUSSION

A. Mitigating-role reduction

       Under the Guidelines, a defendant may receive a reduction for having a

limited role in the offense. U.S.S.G. § 3B1.2. The defendant may receive a four-

level reduction if he was a minimal participant, a two-level reduction if he was a

minor participant, or a three-level reduction if he was somewhere between a

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          We review the district court’s factual finding of the defendant’s role for clear error.
United States v. Barrington, 648 F.3d 1178, 1200 (11th Cir. 2011). When a defendant does not
make a procedural reasonableness objection at the time of his sentencing, we review for plain
error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014).
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minimal and minor participant. Id. The adjustment applies to defendants that are

“substantially less culpable than the average participant.” Id. § 3B1.2, comment.

(n.3(A)). The determination of whether to apply a mitigating-role adjustment “is

heavily dependent upon the facts of the particular case.” Id. § 3B1.2, comment.

(n.3(C)). On November 1, 2015, an amendment to the application notes of

§ 3B1.2 took effect, adding the following language to note 3(c):

      In determining whether to apply subsection (a) or (b), or an
      intermediate adjustment, the court should consider the following non-
      exhaustive list of factors:
      (i) the degree to which the defendant understood the scope and
      structure of the criminal activity;
      (ii) the degree to which the defendant participated in planning or
      organizing the criminal activity;
      (iii) the degree to which the defendant exercised decision-making
      authority or influenced the exercise of decision-making authority;
      (iv) the nature and extent of the defendant’s participation in the
      commission of the criminal activity, including the acts the defendant
      performed and the responsibility and discretion the defendant had in
      performing those acts;
      (v) the degree to which the defendant stood to benefit from the
      criminal activity.

      For example, a defendant who does not have a proprietary interest in
      the criminal activity and who is simply being paid to perform certain
      tasks should be considered for an adjustment under this guideline.

      The fact that a defendant performs an essential or indispensable role
      in the criminal activity is not determinative. Such a defendant may
      receive an adjustment under this guideline if he or she is substantially
      less culpable than the average participant in the criminal activity.




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U.S.S.G. Supp. App. C., Amend. 794. Because this is a clarifying amendment to

the Guidelines, it applies retroactively. United States v. Cruickshank, __ F.3d __,

2016 WL 5075936 at *7 (11th Cir. Sept. 20, 2016).

      The district court did not clearly err in denying Herrera-Villarreal a

mitigating role reduction pursuant to U.S.S.G. § 3B1.2. In determining whether a

mitigating-role adjustment applies, the district court should consider two

principles: first, “the district court must measure the defendant’s role against [his]

relevant conduct” and second, “where the record evidence is sufficient, the district

court may also measure the defendant’s conduct against that of other participants

in the criminal scheme attributed to the defendant.” See United States v. De Varon,

175 F.3d 930, 934 (11th Cir. 1999) (en banc). Herrera-Villarreal was sentenced

based on the offense conduct of transporting 1,227 kilograms of cocaine as a

crewmember aboard a vessel. Because his offense level was calculated using only

the amount of drugs found on the boat on which he served, he did not have a minor

role compared to his relevant conduct. Id. at 940–41 (explaining the district court

must “measure the defendant’s role” against all of the relevant conduct that was

attributed to him, as “some defendants may be held accountable for conduct that is

much broader than their specific acts,” such as in a conspiracy). Rather, Herrera-

Villarreal’s actual conduct was identical to the relevant conduct attributable to him.




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      Further, Herrera-Villarreal presented no evidence to demonstrate that he was

less culpable than the other crewmembers, who were the only other identifiable

participants in his relevant conduct. See id. at 944 (explaining under the second

principle, the district court must “measure the defendant’s culpability in

comparison to that of other participants in the relevant conduct,” to the extent they

can be identified or discerned from the evidence). In fact, at his sentencing

hearing, Herrera-Villarreal proffered that he was a mechanic aboard the ship,

which arguably made him more culpable than other crewmembers who may have

had positions of less responsibility in the enterprise. Ultimately, Herrera-Villarreal

had the burden of demonstrating by a preponderance of the evidence that he

deserved a mitigating role adjustment. See United States v. Alvarez-Coria, 447

F.3d 1340, 1343 (11th Cir. 2006) (explaining the defendant bears the burden of

establishing his qualification for a minor role reduction by a preponderance of the

evidence). There is nothing in the record to show that Herrera-Villarreal met this

burden.

      The district court correctly concluded the November 2015 amendment to

note 3(c) did not change the fact the essential inquiry is whether the defendant was

less culpable than the average participant. U.S.S.G. § 3B1.2, comment. (n.3(A)).

The district court did not clearly err in determining Herrera-Villarreal was not

entitled to a minor role reduction in light of the amendment. Even considering the


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new factors added to the application notes, Herrera-Villarreal has not presented

any evidence that (1) his actual conduct was less substantial than the conduct

attributable to him, or (2) he was less culpable than the other crewmembers. He is

not entitled to the adjustment even when applying the amendment.

B. Procedural reasonableness

      We ensure the district court committed no significant procedural error, such

as improperly calculating the guideline range, failing to consider the 18 U.S.C.

§ 3553(a) factors, or inadequately explaining the chosen sentence. Gall v. United

States, 552 U.S. 38, 51 (2007). “Although the district court must provide some

explanation for the sentence, nothing . . . requires the district court to state on the

record that it has explicitly considered each of the § 3553(a) factors or to discuss

each of the § 3553(a) factors.” United States v. Docampo, 573 F.3d 1091, 1100

(11th Cir. 2009) (quotation omitted).

      Herrera-Villarreal’s sentence is not procedurally unreasonable, and the

district court did not commit any procedural error, plain or otherwise. The district

court expressly stated that it had considered the § 3553(a) factors, then specifically

addressed and explained its reasoning regarding certain § 3553(a) factors such as

the background and characteristics of the defendant, and the seriousness of the

offense. Thus, the district court did not commit a procedural error by failing to




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consider the § 3553(a) factors or inadequately explaining the sentence it imposed.

See id.

                                II. CONCLUSION

      We affirm Herrera-Villarreal’s 135-month sentence.

      AFFIRMED.




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