                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                          SEPTEMBER 20, 2007
                              No. 07-10785                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 06-00386-CR-T-26-TGW

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                   versus

JAVIER EMICIO PAJARO-CUADRO,

                                                    Defendant-Appellant.


                        ________________________

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

                            (September 20, 2007)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Javier Emicio Pajaro-Cuadro appeals his 135-month sentence imposed after
he pleaded guilty to possession with intent to distribute 5 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. § 1903(a), (g), 21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C.

§ 2, and to conspiracy to possess with intent to distribute 5 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. § 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii).

      On September 10, 2006, four Columbian nationals, among them Pajaro-

Cuadro, attempted to smuggle approximately 1250 kilograms of cocaine into the

United States on a go-fast boat. As the Naval ship USS Hall approached the boat,

the crew, including Pajaro-Cuadro, began throwing bales of cocaine overboard.

The Navy disabled the boat, boarded it, and detained the crew.

      The probation office’s presentence investigation report calculated Pajaro-

Cuadro’s base offense level at 38. The PSR then adjusted that level to 35 due to a

two point reduction for acceptance of responsibility, pursuant to U.S.S.G. §

3E1.1(a), and an additional one point reduction for timely notifying the authorities

of his intent to enter a guilty plea, pursuant to § 3E1.1(b).

      At sentencing, the district court found that a further reduction of two points

was appropriate under the “safety valve” provision, U.S.S.G. §§ 2D1.1(b)(9) &

5C1.2, which resulted in a final adjusted offense level of 33. An offense level of



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33, coupled with Pajaro-Cuadro’s criminal history category of I, yielded an

advisory guideline range of 135 to 168 months. Taking this into account, as well

as the 18 U.S.C. § 3553(a) factors, the district court sentenced Pajaro-Cuadro to

135 months imprisonment.

      Pajaro-Cuadro contends that the district court erred in not further reducing

his offense level pursuant to U.S.S.G. § 3B1.2, the minor- or minimal-role

reduction provision. Pajaro-Cuadro claims that he just was a fisherman picked off

the docks in order to make the attempt to smuggle cocaine into the United States

appear innocuous. Although it is undisputed that he was not an “organizer, leader,

manager, or supervisor of the criminal activity,” Pajaro-Cuadro admits that he

helped throw bales of cocaine overboard when the Navy intercepted the boat.

Pajaro-Cuadro claims that he had no information about the shipment and no

decision-making authority regarding the trip or the cargo.

      We review a district court’s finding that the defendant was not a minor

participant in the offense only for clear error. United States v. De Varon, 175 F.3d

930, 937 (11th Cir. 1999) (en banc). A defendant is a minor participant if he is

“less culpable than most other participants, but [his] role could not be described as

minimal.” U.S.S.G. § 3B1.2, cmt. n.5 (2006). The proponent of the downward

adjustment always bears the burden of proving the mitigating role in the offense by



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a preponderance of the evidence. De Varon, 175 F.3d at 939.

      Both parties recognize that De Varon controls in this case. De Varon

requires that the court apply a two-prong analysis to determine whether to apply a

minor role adjustment. The district court should consider “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 [his] relevant

conduct.” Id. at 940. The latter prong requires that the defendant have a less

culpable role than most of the other participants. Id. at 939. Of the two prongs, the

first is the more important and may be dispositive. Id. at 945. As to it, we have

explained that, “[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.

      At sentencing Pajaro-Cuadro was held accountable for his possession with

intent to distribute cocaine while on board a vessel subject to the jurisdiction of the

United States and his conspiracy to possess with intent to distribute cocaine while

on board a vessel subject to the jurisdiction of the United States. The only

evidence on record is that Pajaro-Cuadro was on the boat with more than a literal

ton of cocaine and participated in the only other observed act in furtherance of the



                                           4
conspiracy, throwing the evidence overboard when confronted with the Naval

vessel. From this evidence, it was not clear error for the district court to hold

Pajaro-Cuadro responsible for a non-minor role in the crimes for which he was

convicted. Further, this may be a case where the quantity of drugs involved is so

extreme as to preclude the possibility of anyone directly involved having a minor

role. See United States v. Thomas, 870 F.2d 174, 177 (5th Cir. 1989) (one

kilogram of cocaine found to be a substantial enough quantity to deny a minor-role

reduction); United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989) (497 grams

of cocaine found to be a substantial enough quantity to deny a minor-role

reduction).

      With regard to the second prong of the De Varon analysis, relative

culpability, 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.” De Varon, 175 F.3d at 944. Here, the evidence only shows that

Pajaro-Cuadro did not have a significant role in the overall scheme of cocaine

smuggling and distribution. Even if Pajaro-Cuadro had a lesser role in the actual

conduct leading to the arrest than some of his accomplices, for example the person

in charge of the boat, it may be that none of the participants can be deemed to have



                                           5
played a minor role. See id. at 944 (“The fact that a defendant's role may be less

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

dispositive of role in the offense, since it is possible that none are minor or

minimal participants.”). Further, the only evidence in the record about the other

participants is that one of them was “in charge” of the boat and that they were all

observed engaging in conduct identical to that of the defendant. Pajaro-Cuadro did

not show by a preponderance of the evidence that he did anything different from

the others on the boat.

       Pajaro-Cuadro also contends that the district court either failed to consider or

failed to document its consideration of all his relevant conduct in making a finding

about the extent of his role in the crimes charged. U.S.S.G. § 1B1.3(a) provides

that adjustments in chapter 3, which includes the minor- and minimal-role

adjustments, should be determined by consideration of specified factors. The ones

upon which Pajaro-Cuadro relies are: (1) acts or omissions caused by the

defendant; (2) reasonably foreseeable acts of accomplices; and (3) all harm

resulting from the defendant’s acts or omissions. U.S.S.G. §§ 1B1.3(a)(1)(a) &

(3).

       The district court’s failure to explicitly discuss the factors in §1B1.3 of the

sentencing guidelines does not compel us to reverse the court’s sentence. As we



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said in De Varon:

      In making the ultimate determination of the defendant’s role in the
      offense, the sentencing judge has no duty to make any specific
      subsidiary factual findings. So long as the district court’s decision is
      supported by the record and the court clearly resolves any disputed
      factual issues, a simple statement of the district court’s conclusion is
      sufficient.

Id. at 939 (internal citations omitted).

      Because Pajaro-Cuadro did not meet either of the De Varon prongs, the

district court did not clearly err in finding that he was not a minor or minimal

participant in the offense, and therefore not entitled to a § 1B1.2 reduction.

      AFFIRMED.




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