                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                            FEBRUARY 11, 2008
                               No. 07-13518                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                  D. C. Docket No. 07-00075-CR-T-26-MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

WILMAN ANTONIO ALCALA-SANVICENTE,

                                                           Defendant-Appellant.


                         ________________________

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

                             (February 11, 2008)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Wilman Antonio Alcala-Sanvicente appeals the district court’s denial of a
minor-role reduction, pursuant to U.S.S.G. § 3B1.2(b). Alcala-Sanvincente agreed

to serve aboard a freighter that he knew was being used to smuggle cocaine. The

crew consisted of eight other members. The Coast Guard discovered more than

10,000 kilograms of cocaine hidden on the vessel. Alcala-Sanvincente pled guilty

to one count of conspiracy to possess with intent to distribute five kilograms or

more of cocaine while on board a vessel subject to the jurisdiction of the United

States, 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 possessing with intent to distribute five

kilograms or more of cocaine while on board a vessel subject to the jurisdiction of

the United States, 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). His total offense level was reduced by five

levels, after which his Guidelines range was calculated as 135–168 months’

imprisonment. The district court sentenced Alcala-Sanvincente to 135 months’

imprisonment on both counts, to run concurrently.

      On appeal, Alcala-Sanvicente argues that he was not an organizer or

supervisor of the smuggling operation, and he was less culpable than any of his co-

conspirators. He also argues that nothing in the district court’s sentence indicates

that it properly considered the factors in U.S.S.G. § 1B1.3(a) regarding his

adjustment. For the reasons set forth below, we affirm.



                                          2
      “[A] district court’s determination of a defendant’s role in the offense is a

finding of fact to be reviewed only for clear error.” United States v. Rodriquez De

Varon, 175 F.3d 930, 937 (11th Cir. 1999). Further explaining this standard, we

have stated,

      [A] trial court’s choice between ‘two permissible views of the
      evidence’ is the very essence of the clear error standard of review. . . .
      So long as the basis of the trial court’s decision is supported by the
      record and does not involve a misapplication of a rule of law, we
      believe that it will be rare for an appellate court to conclude that the
      sentencing court’s determination is clearly erroneous.

Id. at 945 (citation omitted).

      Section 3B1.2 of the Sentencing Guidelines provides for a two-level

decrease if the defendant was a minor participant in any criminal activity.

U.S.S.G. § 3B1.2. A defendant is a minor participant if he is less culpable than

most other participants, but his role cannot be described as minimal. Id. cmt. n.5.

“The defendant bears the burden of proving his minor role by a preponderance of

the evidence.” United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002).

      In determining whether a defendant qualifies for a minor-role adjustment,

the district court first “must measure the defendant’s role against the relevant

conduct for which [he] was held accountable at sentencing,” and second, “may also

measure the defendant’s role against other participants, to the extent that they are

discernable, in that relevant conduct.” De Varon, 175 F.3d at 945. Where a drug

                                           3
courier’s relevant conduct is limited to his own criminal act, a district court may

legitimately conclude that the courier played an important or essential role in that

crime. See id. at 942–43. Furthermore, “where the relevant conduct attributed to a

defendant is identical to [his] actual conduct, [he] cannot prove that [he] is entitled

to a minor role adjustment simply by pointing to some broader criminal scheme in

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

Id. at 941. “[T]he amount of drugs imported,” moreover, “is a material

consideration in assessing a defendant’s role in [his] relevant conduct.” Id. at 943.

As to the second prong, “the district court must determine that the defendant was

less culpable than most other participants in [his] relevant conduct.” Id. at 944.

Moreover, relative culpability is not necessarily dispositive, as none of the

participants may have played a minor or minimal role. Id.

      The district court did not clearly err in denying Alcala-Sanvicente’s request

for a minor-role reduction to his offense level because he is being held accountable

only for the amount of drugs that are attributable to him personally, and none of

the evidence suggests that he played a smaller role in the offense than any of the

other crew members, except the ship’s captain. Accordingly, we affirm.

      AFFIRMED.




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