          Case: 16-12690   Date Filed: 04/17/2017   Page: 1 of 11


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12690
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:15-cr-00303-EAK-AEP-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

EMILIANO FABRICIO PALMA-MEZA,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 17, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Emiliano     Palma-Meza     appeals       his   total   135-month       sentence   of

imprisonment, imposed after pleading guilty to offenses involving drug trafficking

in international waters. See 46 U.S.C. § 70503(a). On appeal, Palma-Meza argues

that the district court erred by failing to apply a two-level reduction in his offense

level for his mitigating role as a minor participant, pursuant to U.S.S.G.

§ 3B1.2(b). After careful review, we affirm.

      Palma-Meza was a crewmember on a “go-fast” vessel transporting at least

480 kilograms of cocaine that was intercepted by United States law enforcement in

international waters approximately 223 nautical miles south of the Guatemala-El

Salvador border.    The go-fast vessel had three crewmembers: Jonathon Israel

Mero-Mero, the master of the ship; Sherwin Harlan Ebanks, the “load guard” and

representative of the parties receiving the cocaine shipment; and Palma-Meza, the

“mariner.” As the mariner, Palma-Meza was responsible primarily for changing

the fuel supply lines and driving the vessel while the master rested. All three

crewmembers assisted in jettisoning the cocaine at the approach of law

enforcement.

      Claiming that he was less culpable than Mero-Mero and Ebanks, Palma-

Meza moved for a minor-role sentencing reduction under U.S.S.G. § 3B1.2.

Palma-Meza asserted that he qualified for a minor-role reduction for several

reasons: (1) as a mariner, he had little or no understanding of the scope and


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structure of the overarching criminal activity; (2) he had not planned or organized

the smuggling activity; (3) he had no decision-making authority in the venture; (4)

he had assisted only with the maritime transportation of the cocaine; and (5) he had

no proprietary interest in the cocaine and stood to make a small fraction (between

$3,000 and $15,000) of the street value of the cocaine (approximately $17 million).

Palma-Meza specifically relied on Amendment 794 to the Sentencing Guidelines, a

clarifying amendment that recently added commentary guidance for evaluating

whether a defendant is entitled to a mitigating-role reduction.

      The district court denied Palma-Meza’s request for a minor-role reduction,

citing the quantity of cocaine involved, the vessel’s small crew size, and Palma-

Meza’s intelligence, education, and work experience. The court noted that the

Sentencing Commission’s motivation to implement Amendment 794 was not

focused on the unique issues presented in the international drug-smuggling cases

brought in the Middle District of Florida. The court continued,

      And the acquisition and interception of serious quantities of cocaine
      they were able to recover—we don’t know how much sank—but they
      were able to recover 12 packages, which totals 480 kilograms. That’s
      not insignificant.

      And there’s no question that in this situation, the role participation of
      this defendant in a three-person go-fast boat certainly placed him in a
      likely position of doing most everything on board that vessel.

      He also displayed intelligence based upon his record, and he could
      have said no when it came time to going on board. He really didn’t
      need to go. He’s got a lot of occupational assets for a 28-year-old
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      person. An Ecuadorian with a history of education and occupations
      that he had.

      No. The defendant’s objection is totally overruled.

The district court sentenced Palma-Meza to 135 months of imprisonment, at the

low end of his advisory guideline range. Palma-Meza appeals the denial of a

minor-role reduction.

      We review a district court’s denial of a role reduction for clear error. United

States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016). Review for clear

error is deferential, and we will not disturb a district court’s findings unless we are

left with a definite and firm conviction that a mistake has been made. Id. The

district court’s choice between two permissible views of the evidence will rarely

constitute clear error, so long as the basis of the trial court’s decision is supported

by the record, and the court did not misapply a rule of law. Id. “The defendant

bears the burden of establishing his minor role in the offense by a preponderance

of the evidence.” Id.

      Under § 3B1.2(b), a defendant is entitled to a two-level decrease in his

offense level if he was a minor participant in the criminal activity. U.S.S.G

§ 3B1.2(b). A minor participant is one “who is less culpable than most other

participants in the criminal activity, but whose role could not be described as

minimal.”    Id. § 3B1.2, cmt. n.5.     The determination of whether to apply a



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mitigating-role adjustment “is heavily dependent upon the facts of the particular

case.” Id., cmt. n.3(C).

      In United States v. De Varon, we instructed that, in determining whether to

grant a minor-role reduction, the district court should consider 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 conduct. 175 F.3d 930, 940 (11th Cir. 1999) (en banc). Under the first

principle, 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 broader than their individual, specific acts. Id. at

940–41, 944. Regarding the second principle, the district court should look to

other participants who are identifiable or discernible from the evidence and who

were involved in the conduct attributed to the defendant. Id. at 944. However, the

fact that a defendant’s role is less than other participants’ roles in the relevant

conduct may not be dispositive because it is possible that none of them are minor

or minimal participants. Id.

      In De Varon, we stated that a defendant’s status as a drug courier is not

dispositive in determining whether that defendant is entitled to a minor-role

reduction, but the drug quantity for which the courier is responsible is a “material




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consideration.” Id. at 942–43. We also provided factors that a district court should

consider, stating,

      In the drug courier context, examples of some relevant factual
      considerations include: amount of drugs, fair market value of drugs,
      amount of money to be paid to the courier, equity interest in the drugs,
      role in planning the criminal scheme, and role in the distribution. This
      is not an exhaustive list, nor does it suggest that any one factor is
      more important than another.

Id. at 945. Further, we noted that we would not foreclose the possibility that, in

some circumstances, the drug quantity alone may be dispositive. Id. at 943.

      Amendment 794, which went into effect on November 1, 2015, added

guidance to § 3B2.1’s commentary relating to mitigating-role reductions. The

Sentencing Commission explained that Amendment 794 was promulgated in

response to a study that found that the “mitigating role [guideline] [was] applied

inconsistently and more sparingly than the Commission intended.” U.S.S.G. Supp.

to App. C, Amend. 794, Reason for Amendment. This new guidance provided as

follows:

      In determining whether to apply [a mitigating role] 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;




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          (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.

U.S.S.G. Supp. to App. C, Amend. 794; U.S.S.G. § 3B1.2 cmt. n.3(C).

      Amendment 794 further explains that “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.”

Id. Even if the task the defendant performs is “essential or indispensable” to the

criminal activity, that fact alone “is not determinative,” and the defendant’s role

must still be evaluated to determine “if he or she is substantially less culpable than

the average participant in the criminal activity.” Id.

      In Cruickshank, we held that Amendment 794 was a clarifying amendment

that embraced the approach that we took in De Varon and incorporated many of

the same factors delineated in De Varon. Cruickshank, 837 F.3d at 1193–94. One

of these factors—drug quantity—remains a valid consideration when conducting

the “fact-intensive” inquiry into a defendant’s role in the offense. Id. at 1194–95

(“[N]othing in De Varon or Amendment 794 precludes a district court from


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considering the drug quantity with which the defendant was involved as an

indicator of his role.”). However, Amendment 794 clarified that drug quantity is

not dispositive as to a defendant’s role in the offense, so it is legal error for a

sentencing court to rely on drug quantity as “the only factor to be considered.” Id.

at 1195 (emphasis in original); see id. (“Amendment 794 clarified that a defendant

could be considered for a minor-role adjustment in many circumstances, none of

which turn on drug quantity.”).            Rather, drug quantity is one factor to be

considered among others based on the “totality of the circumstances.” 1 Id.

       Palma-Meza maintains that the district court erroneously applied several

categorical rules—based on drug quantity, the small crew size, and his intelligence,

education, and occupational history—when evaluating his eligibility for a minor-

role reduction. The upshot of the court’s ruling, Palma-Meza contends, is that

defendants convicted of transporting large quantities of drugs on the high seas are

per se ineligible for a minor-role reduction, which he asserts is inconsistent with

the guidelines and this Court’s precedent. We are not persuaded.

       The district court did not clearly err in denying Palma-Meza a minor-role

reduction under U.S.S.G. § 3B1.2(b). Nothing in the record indicates that the court


       1
           In Cruickshank, we addressed De Varon’s suggestion that drug quantity may be
dispositive in an “extreme case” by explaining that, in certain circumstances, drug quantity may
be more indicative of a defendant’s role in the offense. Id. at 1195 n.1. For instance, in De
Varon, the drug-courier defendant had swallowed the contraband to transport it, and, thus, “the
amount [of drugs] in her possession was actually on her person and perhaps was more likely to
be indicative of her relative role in the offense.” Id.
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misapplied a rule of law by treating any one factor as dispositive.             See

Cruickshank, 837 F.3d at 1192. Rather, the court permissibly considered the

quantity of drugs involved, the small crew size, and Palma-Meza’s intelligence,

education, and occupation assets as factors relevant to the “fact-intensive” inquiry

into his role in the offense. See id. at 1194–95. As for drug quantity, the court

simply noted that the quantity of cocaine involved—480 kilograms of cocaine,

valued at over $17 million—was “not insignificant.” Regarding the small crew

size, the court found that, “in this situation . . . on board that vessel,” Palma-

Meza’s role was not meaningfully distinct from the other two crewmembers. See

U.S.S.G. § 3B1.2 cmt. n.3(C)(iv). The court’s phrasing suggests that the court was

focused on the specific facts of the case and did not apply a categorical rule. And

the court’s statements regarding Palma-Meza’s intelligence and work history are

relevant to assessing his understanding of the scope and structure of the criminal

activity. See U.S.S.G. § 3B1.2 cmt. n.3(C)(i). Accordingly, the district court did

not commit legal error by relying solely on any one factor.

      Because Palma-Meza has not shown that the district court misapplied a rule

of law in ruling on his request for a § 3B1.2(b) minor-role reduction, he must

instead show that the record does not support the court’s finding that he was not a

minor participant in the criminal activity. Cruickshank, 837 F.3d at 1192. We are




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not left with a definite and firm conviction that the court made a mistake in

evaluating Palma-Meza’s role under the totality of the circumstances. See id.

       Palma-Meza’s main contention is that he was less culpable than the other

two crewmembers on the go-fast boat.2 See De Varon, 175 F.3d at 944–45 (stating

that the court should “measure the defendant’s role against the other participants,

to the extent that they are discernable, in that relevant conduct”). The record,

however, supports the district court’s contrary finding that his role in the criminal

activity was largely similar to the other two participants. Although the master and

the load guard had duties in addition to Palma-Meza’s, the evidence supports the

court’s finding that Palma-Meza was in a position to do most of the duties on board

the vessel. For instance, all three crewmembers took turns driving the vessel and

changing the fuel lines, and all three crewmembers helped jettison the cocaine

when authorities approached. Moreover, even if Palma-Meza was less culpable

than the other two crewmembers, he is not automatically entitled to a role

reduction. As we said in De Varon, “[t]he fact that a defendant’s role may be less

than that of other participants engaged in the relevant conduct may not be




       2
           Because Palma-Meza’s guideline range was calculated using only the amount of drugs
found on the boat on which he served as a crewmember, he did not have a minor role compared
to the relevant conduct for which he was held accountable. See De Varon, 175 F.3d 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).
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dispositive of role in the offense, since it is possible that none are minor or

minimal participants.” Id. at 944.

      Palma-Meza bore the burden of establishing his minor role in the offense,

and, based on the record as a whole, we cannot say that the court clearly erred in

finding that Palma-Meza failed to meet his burden. See Cruickshank, 837 F.3d at

1192. Accordingly, we AFFIRM the denial of a minor-role reduction under

§ 3B1.2(b).




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