                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 05-12045                FEBRUARY 14, 2006
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                  D. C. Docket No. 04-00551-CR-T-27-MAP

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                   versus

AMAURY VILLADIEGO GARCIA,

                                                        Defendant-Appellant.


                        ________________________

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

                             (February 14, 2006)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

     Amaury Villadiego Garcia appeals his 135-month sentence for conspiracy to
possess with the intent to distribute five kilograms or more of cocaine while aboard

a vessel subject to the jurisdiction of the United States and possession with the

intent to distribute five kilograms or more of cocaine while aboard a vessel subject

to the jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a), (g), and

(j), and 21 U.S.C. § 960(b)(1)(B)(ii). We AFFIRM.

                                 I. BACKGROUND

      Garcia, who had been a fisherman and boat driver in Colombia for twenty

years, was on a “go-fast” boat intercepted by United States Coast Guard officers.

During a pursuit by the officers, the crew jettisoned 58 bales from the boat which

were later determined to contain 1,450 kilograms of cocaine. Garcia and other

crew members told the officers that they were recruited to transport the cocaine by

an individual named “Pedro.” Garcia was paid approximately $1,957 for his

services on the “go-fast” boat. He pled guilty to both counts of the indictment

without entering into a plea agreement with the government.

      A federal grand jury indicted Garcia for conspiracy to possess with the intent

to distribute five kilograms or more of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a), (g), and (j),

and 21 U.S.C. § 960(b)(1)(B)(ii) (Count 1); and possession with the intent to

distribute five kilograms or more of cocaine while aboard a vessel subject to the



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jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a) and (g), and

21 U.S.C. § 960(b)(1)(B)(ii) (Count 2). R1-8 at 1-2. The indictment alleged a total

of 1,450 kilograms of cocaine. Id. at 4.

      The probation officer set Garcia’s base offense level at 38 pursuant to

U.S.S.G. § 2D1.1(c)(1). Garcia received a net three-level reduction for acceptance

of responsibility under § 3E1.1, resulting in a total offense level of 35. Garcia was

assessed no criminal history points, making his criminal history category I. His

guideline range was 168 to 210 months of imprisonment. Garcia objected that the

presentence investigation report did not contain (1) a reduction based on the

“safety valve” provision and (2) a minor-role reduction for his role in the offense.

      At sentencing, Garcia’s counsel argued that he was entitled to a minor-role

reduction because (1) he had no interest in or control over the drugs, (2) he was not

an organizer or leader but a transporter, and (3) the factors in 18 U.S.C. § 3553(a)

militated in favor of granting a minor-role reduction. R2 at 4-6. The district judge

denied the minor-role reduction and found that Garcia was not held accountable for

conduct beyond his activities on the “go-fast” boat and that he was not less

culpable than his codefendants, also crew members of the “go-fast” boat. Id. at

10-12. The judge also noted the quantity of drugs as a consideration. Id. at 12.

The judge sustained Garcia’s objection regarding a safety-valve reduction and



                                           3
recalculated his total offense level as 33 and his Sentencing Guidelines range as

135 to 168 months of imprisonment. Id. at 12-13. The district judge sentenced

Garcia to 135 months of imprisonment and three years of supervised release on

each count, to run concurrently. The judge noted that the sentenced imposed was

determined to be appropriate after consideration of the factors in § 3553(a). Id. at

16. On appeal, Garcia argues that his role in the offense was less significant than

that of the owners of the drugs and organizers of the drug trafficking, and he

asserts that he was only a crew member without special skills or knowledge.

                                  II. DISCUSSION

       While the Sentencing Guidelines are advisory after United States v. Booker,

543 U.S. 220, 125 S.Ct. 738 (2005), the district court must continue to consider

them when sentencing and must calculate a sentence under the Sentencing

Guidelines correctly. United States v. Crawford, 407 F.3d 1174, 1178-79 (11th

Cir. 2005). A sentencing court’s determination of a defendant’s role in an offense

constitutes a factual finding that is reviewed for clear error. United States v. De

Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). “The proponent of the

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

the offense by a preponderance of the evidence.” Id. at 939.

      The Sentencing Guidelines permit a court to decrease a defendant’s offense



                                           4
level by four levels if it finds that the defendant was a “minimal participant” or two

levels if it finds that the defendant was a “minor participant” in the criminal

activity. U.S.S.G. § 3B1.2. A minimal participant is one who is “plainly among

the least culpable of those involved in the conduct of a group,” U.S.S.G. § 3B1.2,

comment. (n.4), while a minor participant is one “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 adjustment applies if the defendant proves by preponderance of the

evidence that he “play[ed] a part in committing the offense that makes him

substantially less culpable than the average participant.” U.S.S.G. § 3B1.2,

comment. (n.3(A)). The determination of whether to apply a role reduction is a

heavily fact-based inquiry, and a sentencing 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.” U.S.S.G. § 3B1.2, comment.

(n.3(C)).

      In determining whether a mitigating role adjustment is warranted, a district

judge first must evaluate “the defendant’s role against the relevant conduct for

which []he has been held accountable” at sentencing. De Varon, 175 F.3d at 940.

In looking at relevant conduct, “the district court must assess whether the



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defendant is a minor or minimal participant in relation to the relevant conduct

attributed to the defendant in calculating [his] base offense level.” Id. at 941.

“Only 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. Although a defendant’s status as a drug

courier alone does not establish whether or not he is a minor participant, “when a

drug courier’s relevant conduct is limited to [his] own act of importation [or

transportation], a district court may legitimately conclude that the courier played an

important or essential role in the importation of those drugs.” Id. at 942-43.

Furthermore, 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, in some cases, could be dispositive. Id. at 943.

      The district court evaluates a defendant’s role by comparing it to that of

other participants in his relevant conduct. Id. at 940. When measuring a

defendant’s conduct against other participants’ conduct, a district judge may

consider only those participants who are identifiable by the evidence and who were

involved in the relevant conduct for which the defendant was convicted. Id. at 944.

“The fact that a defendant’s role may be less than that of other participants engaged



                                           6
in the relevant conduct may not be dispositive of [his] role in the offense, since it is

possible that none are minor or minimal participants.” Id. “[T]he district court

must determine that the defendant was less culpable than most other participants in

[his] relevant conduct.” Id.; see also, U.S.S.G. § 3B1.2, comment. (n.3(A)) (“This

section provides a range of adjustments for a defendant who plays a part in

committing the offense that makes him substantially less culpable than the average

participant.”).

       The district judge did not clearly err in refusing to grant Garcia a minor-role

reduction. First, Garcia was held accountable for a large amount of drugs, and this

alone precludes him from receiving a minor-role adjustment. Second, because

Garcia’s relevant conduct was possessing with intent to distribute 1,450 kilograms

of cocaine, he must establish that he was a minor participant with respect to that

relevant conduct and cannot point to a broader criminal conspiracy. Finally,

Garcia’s relevant conduct is identical to his actual conduct. In the drug

transportation context, the district court is permitted to conclude, as it did here, that

Garcia played an important or essential role in the transportation of those drugs.

       The second prong of De Varon further precludes a minor-role adjustment.

To the extent that Garcia argues that his role should be compared to others in a

larger conspiracy, his argument is meritless because other conspirators were not



                                            7
discernible from the evidence and are not part of the relevant conduct for which

Garcia was convicted. The other participants in the relevant conduct were part of

the same conspiracy and all held accountable for the same amount of drugs. There

is nothing in the facts, to which Garcia did not object, to indicate that he was

substantially less culpable than most of his fellow crewmen. Therefore, the district

judge did not clearly err by denying Garcia a minor-role reduction.

                                 III. CONCLUSION

      Garcia appeals his 135-month sentence for conspiracy to possess with the

intent to distribute five kilograms or more of cocaine while aboard a vessel subject

to the jurisdiction of the United States and possession with the intent to distribute

five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction

of the United States, in violation of 46 U.S.C. § 1903(a), (g), and (j), and 21 U.S.C.

§ 960(b)(1)(B)(ii). Because the record supports a finding that Garcia neither

played a mitigating role in relation to the relevant conduct attributed to him nor

was he substantially less culpable than most of the other participants in the relevant

conduct, the district judge did not clearly err by denying him a minor-role

reduction. Accordingly, his sentence is AFFIRMED.




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