                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                         NOVEMBER 13, 2007
                             No. 06-16343                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 06-00190-CR-T-27-EAJ

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                  versus

ANCISAR RENTERIA-BALANTA,

                                                    Defendant-Appellant.


                       ________________________

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

                           (November 13, 2007)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
       Ancisar Renteria-Balanta (“Balanta”)1 appeals his sentence of 120 months of

imprisonment for conspiracy to distribute five kilograms or more of cocaine while

on board a vessel subject to the jurisdiction of the United States, 46 app. U.S.C.

§ 1903(a), (g) and (j),2 and 21 U.S.C. § 960(b)(1)(B)(ii), and possession with intent

to distribute five kilograms or more of cocaine while on board a vessel subject to

the jurisdiction of the United States, 46 app. U.S.C. § 1903(a), (g), 21 U.S.C.

§ 960(b)(1)(B)(ii), and 18 U.S.C. § 2. Upon review, we conclude that the district

court correctly determined that Balanta did not deserve a minor role reduction, and

that Balanta has failed to establish that his sentence was unreasonable.

Accordingly, we AFFIRM.

                                     I. BACKGROUND

       On 16 May 2006, while on patrol in international waters, a United States

maritime aircraft sighted a go-fast vessel southwest of the Galapagos Islands. As

the United States Coast Guard closed in on the boat, the crew on the vessel set it on

fire, and all five crew members jumped into the water. The Coast Guard rescued

the crew --- which consisted of Balanta and four other individuals --- and

       1
        At a pre-sentencing hearing before the district court, the defendant-appellant indicated that
his proper name was “Balanta-Renteria,” not “Renteria-Balanta” as had been indicated in the
Indictment. See R2 at 3, 6, 8. For ease of reference, we refer to the defendant-appellant simply as
“Balanta” throughout this opinion.
       2
        The appendix to Title 46 containing the subject provisions was repealed effective 6 October
2006, and reenacted as 46 U.S.C. §§ 70503 and 70506 with no relevant changes.

                                                 2
attempted to extinguish the fire as the vessel sank. After capsizing, multiple bales

of cocaine floated to the surface. The Coast Guard recovered 36 bales of cocaine,

plus another 715 individual bricks from the damaged bales, resulting in a total of

4,000 pounds (1,814 kilograms) of cocaine.

      After being indicted by a grand jury, Balanta pled guilty to one count of

conspiracy to possess with intent to distribute five kilograms of cocaine while on

board a vessel subject to the jurisdiction of the United States, and one count of

possession with intent to distribute five kilograms of cocaine. Prior to sentencing,

the probation officer prepared a pre-sentence investigation report (“PSI”) in

Balanta’s case.

      The PSI assigned Balanta a base offense level of 38, pursuant to U.S.S.G.

§ 2D1.1(c). Balanta was then granted a two-level reduction pursuant to the “safety

valve” provisions of U.S.S.G. §§ 2D1.1(b)(7) and 5C1.2. An additional three

points were deducted for Balanta’s acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1. Thus, Balanta’s resulting offense level was 33, and his criminal

history category was Category I, which produced a recommended sentencing range

of 135 to 168 months of imprisonment. Balanta’s charged offense carried a

mandatory minimum term of imprisonment of 10 years, pursuant to 21 U.S.C. §

960(b)(1)(B); however, because Balanta met the “safety valve” criteria set forth in



                                          3
18 U.S.C. § 3553(f)(1)(5), the PSI indicated that the district court could impose a

sentence without regard to the statutory minimum sentence.

      At sentencing, Balanta argued that he should receive a minor role reduction,

pursuant to U.S.S.G. § 3B1.2(b). The court ultimately overruled this objection,

however, finding that Balanta had not established that his role in the conduct for

which he had been held accountable had been any less than the conduct of the

other conspirators.

      Balanta addressed the court at the sentencing hearing. He stated that he was

poor and had children to support, and that he had gotten involved in cocaine

trafficking to help his family. Balanta’s counsel pointed out that he had cooperated

with the government and had been forthcoming with information. In response, the

government agreed that the level of detailed information Balanta had provided, and

his level of honesty, had both been “above average.” R3 at 26.

      The government stated that Balanta and the other crew members had given a

proffer stating that each had expected to receive the equivalent of approximately

$15,000 for importing the cocaine. The government also pointed out that Balanta

had admitted to participating in a previous trip on a go-fast vessel, in which he had

smuggled drugs. In light of this evidence, the government argued that a sentence

within the Guidelines range would be reasonable, though the government indicated



                                          4
that it had no objection to a sentence on the low end of that range.

      In sentencing Balanta, the court recognized that Balanta had smuggled

cocaine on a previous occasion. The court stated, however, that it had empathy for

Balanta because he had small children and was 32 years old, and it noted that

Balanta had provided information to the government about his previous conduct

voluntarily, with no obligation to do so. The court stated that it “would give him

the benefit of consideration in that regard.” Id. at 28.

      In imposing its sentence, the court stated that “[u]ltimately the question is

what sentence is sufficient but not greater than necessary.” Id. at 29. The court

indicated that, in addition to considering the § 3553(a) factors, the Guidelines

range, and the PSI, it had also considered that Balanta had willingly provided

information to the government; that he came from an impoverished background;

and that numerous letters from Balanta’s hometown had been submitted on his

behalf.

      The court then sentenced Balanta to 120 months of imprisonment, which

was below the recommended Guidelines range of 135 to 168 months. The court

stated that such a sentence was “sufficient but not more than necessary to satisfy

the statutory purposes of sentencing” below the guideline range. Id. at 30. The

court also stated its view that the facts of Balanta’s “background and circumstances



                                           5
[] suggest that a 10-year sentence is a just and fair sentence, not overly excessive,

but not minimum, by any means.” Id. at 32. This appeal followed.

                                     II. DISCUSSION

       On appeal, Balanta makes two arguments.3 First, he contends that the

district court clearly erred by not granting him a minor role adjustment in

calculating his sentence, pursuant to U.S.S.G. § 3B1.2(b). Second, Balanta argues

that the court’s sentence of 120 months of imprisonment was unreasonable. We

address each of these arguments in turn.

A. District Court’s Failure to Grant a Minor Role Adjustment

       Balanta first argues that the sentencing court clearly erred by not granting

him a mitigating role adjustment, pursuant to U.S.S.G. § 3B1.2(b). He contends

that many other individuals in the conspiracy played a greater role than him; that

he was the lowest ranking member on board the vessel; that he did not help with

the navigation of the boat; that he was not going to be paid a commission for the

sale of the drugs and had no ownership interest in them; and that other similarly

situated defendants in other boat cases received minor role adjustments.



       3
          Balanta makes a third argument on appeal by adopting co-defendant Martin Sinisterra’s
contention that the Maritime Drug Enforcement Act, 46 U.S.C. app. §§ 1901-1904, is
unconstitutional. We rejected this argument in Sinisterra’s appeal as being meritless, see United
States v. Sinisterra, No. 06-15824, 2007 WL 1695698 at *4 (11th Cir. June 13, 2007) (unpublished),
and we do so here for the same reasons.

                                                6
      We review a district court’s determination of a defendant’s role in the

offense for clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 937

(11th Cir. 1999) (en banc) (citations omitted). Further explaining the clear error

standard, we have stated that

      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 (internal citation and quotation omitted).

      According to U.S.S.G. § 3B1.2(b), a district court may decrease a

defendant’s offense level by two levels if it finds the defendant was a “minor

participant” in the criminal activity. A “minor participant” 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, comment. (n.5). “The proponent of the downward

adjustment . . . always bears the burden of proving a mitigating role in the offense

by a preponderance of the evidence.” De Varon, 175 F.3d at 939 (citations

omitted). In determining whether a minor role adjustment should apply, the

district court should consider the following two principles: “first, the defendant’s

role in the relevant conduct for which [he] has been held accountable at sentencing,

and, second, [his] role as compared to that of other participants in [the] relevant

                                           7
conduct.” Id. at 940.

       As to the first prong, “[o]nly 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. Moreover, “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] may be dispositive --- in and of itself --- in the extreme case.” Id. at 943. As

to the second prong of the De Varon analysis, we have determined that a district

court should look to other participants only to the extent that they (1) “are

identifiable or discernable from the evidence”; and (2) “were involved in the

relevant conduct attributed to the defendant.” Id. at 944. We have indicated,

however, that in many cases the first prong of the De Varon analysis may be

dispositive as to whether the defendant is entitled to a minor role reduction. Id. at

945.

       In this case, Balanta was held accountable for the smuggling of 1,814

kilograms of cocaine. Balanta’s assertions --- that he was not going to be paid a

commission, that he did not own the boat, that he did not navigate the boat, and

that he was a mere courier --- do not establish that his role in transporting the



                                           8
cocaine was minor under our case law. While these assertions might suggest that

Balanta did not have a large role in the overall drug smuggling scheme, as we

explained in De Varon, a defendant’s minor role in the larger conspiracy is not the

pertinent inquiry; the question under § 3B1.2 is whether the defendant’s role in the

criminal conduct for which has been held accountable (in this case, importing

1,814 kilograms of cocaine) could be characterized as minor. See De Varon, 175

F.3d at 944. Balanta’s argument that the district court did not consider that he

played no role in planning the larger criminal scheme ignores the fact that, as we

made clear in De Varon, it is “the defendant’s role in the relevant conduct for

which [he] has been held accountable at sentencing” that matters, and not his role

in the broader conspiracy. See id. at 940.

      Here, Balanta has failed to demonstrate how, if at all, his role in the conduct

for which he was held accountable was minor. First, Balanta’s argument that the

court failed to consider his role in the conspiracy as compared to other crew

members ignores the fact that he did not offer any evidence to differentiate himself

from other crew members. In fact, the government presented uncontroverted

evidence that Balanta and his fellow crew members each expected to receive the

same amount --- approximately $15,000 --- for participating in the smuggling

operation. Moreover, Balanta pled guilty and did not challenge the fact that he was



                                             9
held responsible for the full amount of cocaine that was on the boat --- 1,814

kilograms --- a fact which, we have held, may be a material consideration for the

district court in determining whether a minor role adjustment is warranted. See id.

at 943 (“[T]he amount of drugs in a courier’s possession . . . may be the best

indication of the magnitude of the courier’s participation in the criminal

enterprise.”).

      In light of this evidence, the district court did not commit clear error in

denying Balanta’s request for a minor role reduction. The burden is on Balanta to

demonstrate, by a preponderance of the evidence, that he played a minor role in the

conduct for which he was held accountable. See De Varon, 175 F.3d at 939.

Because Balanta presented scant evidence, other than his own general assertions, to

establish that he had a minor role in importing 1,814 kilograms of cocaine, and

because, in contrast, the government presented uncontroverted evidence that

Balanta participated in the smuggling operation and was paid for doing so, the

district court did not clearly err in denying his motion for a minor role adjustment.

See, e.g., United States v. De La Cruz, 443 F.3d 830, 832 (11th Cir. 2006) (per

curiam) (holding that the district court committed no clear error in denying a minor

role reduction where the defendant produced no evidence to support the request

and the government, in contrast, produced evidence indicating that the defendant



                                          10
was paid for his efforts and had participated in prior maritime drug smuggling

operations); see also U.S.S.G. § 3B1.2, comment. (n. 3) (“As with any other factual

issue, the court, in weighing the totality of the circumstances is not required to

find, based solely on the defendant’s bare assertion, that such a role adjustment is

warranted.”).

B. Reasonableness of Balanta’s Sentence

      Balanta argues that his prison sentence of 120 months was unreasonable,

because he is poor, has a family, and is from Colombia where the government does

not provide adequate financial and medical care for its citizens. Balanta contends

that the court gave no weight to his poverty. He also argues that recidivism is

unlikely in his case. Balanta argues that a sentence below the guideline range

would have been “sufficient but not greater than necessary” to comply with the

purposes of sentencing set forth in Section 3553(a)(2). Br. of Appellant at 15. In

addition, he argues that not giving him a minor role reduction created unwarranted

sentencing disparities from other boat cases, in contravention of 18 U.S.C.

§ 3553(a)(6).

      We have held that “[i]n reviewing the ultimate sentence imposed by the

district court for reasonableness, we consider the final sentence, in its entirety, in

light of the § 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237 (11th



                                           11
Cir. 2006) (brackets in original) (citations and internal quotations omitted). We

have held that “a sentence may be reviewed for procedural or substantive

unreasonableness,” and that “a sentence may be substantively unreasonable,

regardless of the procedure used.” United States v. Hunt, 459 F.3d 1180, 1182 n.3

(11th Cir. 2006). “Review for reasonableness is deferential,” and the relevant

inquiry is “whether the sentence imposed by the district court fails to achieve the

purposes of sentencing as stated in section 3553(a).” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005) (per curiam).

      Section 3553(a) provides that district courts must consider a number of

factors, including, inter alia, (1) the applicable guideline range; (2) the nature and

circumstances of the offense; (3) the history and characteristics of the defendant;

(4) the need for the sentence imposed to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense; (5) the

need for adequate deterrence; (6) protection of the public; and (7) the need to avoid

unwarranted sentencing disparities. 18 U.S.C. § 3553(a)(1)-(6). The burden of

establishing that a particular sentence is unreasonable in light of these factors lies

with the party challenging the sentence. Talley, 431 F.3d at 788.

      In Balanta’s case, the record establishes that the district court: (1) considered

the recommendations set forth in the PSI; (2) correctly calculated the advisory



                                           12
Guidelines range; (3) considered the factors set forth in 18 U.S.C. § 3553(a) and

discussed those factors in determining Balanta’s sentence; and (4) considered the

mitigating circumstances in Balanta’s case. In light of this evidence, we conclude

that the sentence that the district court ultimately imposed was reasonable, and that

Balanta has failed to meet his burden of demonstrating that his sentence was in any

way procedurally or substantively unreasonable.

      Balanta’s argument that his sentence was unreasonable because he is poor

and has dependent children is misplaced, because the record makes clear that the

court did, in fact, consider these facts in reaching its sentence. See R3 at 28

(stating that the court is “empathetic” with Balanta because he has small children);

id. at 30 (mentioning Balanta’s “impoverished background”). Having considered

these factors, the district court was free to determine the weight to be accorded

them. See United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006)

(holding that “[t]he weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court” (citation omitted)), cert.

denied, ___ U.S. ___, 127 S. Ct. 3040 (2007).

      In addition, Balanta’s argument that not giving him a minor role reduction

creates unwarranted sentencing disparities with other boat cases, in violation of

§ 3553(a), is without merit. The district court noted that sometimes minor role


                                           13
reductions are granted and other times they are not --- and that the decision

depends on the facts of each case. In Balanta’s case, the district court did not find,

and Balanta did not present, any facts that showed he was less culpable than other

participants in the conspiracy for which he was held accountable. Moreover,

Balanta’s offenses involved a large drug quantity, over 1,800 kilograms, which

was substantially more than the 150 kilogram minimum necessary to achieve the

maximum offense level contemplated by the sentencing guidelines under U.S.S.G.

§ 2D1.1(c). In short, Balanta has failed to demonstrate that his sentence was

procedurally or substantially unreasonable in light of the § 3553(a) factors.

                                III. CONCLUSION

      Balanta has appealed his 120 month sentence, arguing: (1) that the court

clearly erred by refusing to grant him a minor role reduction under U.S.S.G. §

3B1.2(b); and (2) that his sentence was unreasonable. Upon review of the record,

we discern no error. Therefore, we AFFIRM.




                                          14
