          United States Court of Appeals
                     For the First Circuit


No. 16-1342

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     FREDDY CORTEZ-VERGARA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

     [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
                Selya and Barron, Circuit Judges.


     Xiomara M. Hernandez on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, on brief for appellee.


                        October 17, 2017
            HOWARD, Chief Judge.     After pleading guilty to maritime

drug and conspiracy offenses, Freddy Cortez-Vergara was sentenced

to   a   bottom-of-the-range   guidelines     sentence   of   108    months'

incarceration.    He now challenges his sentence on the ground that

the sentencing court erred by not granting him a minor role

adjustment under U.S.S.G. §3B1.2(b).          Finding Cortez's argument

meritless, we affirm.

                                    I.

            Because Cortez pled guilty, we draw the facts from the

change-of-plea    and   sentencing       hearing   transcripts      and   the

Presentence Investigation Report's ("PSR") uncontested portions.

See United States v. Rossignol, 780 F.3d 475, 476 (1st Cir. 2016).

            Prior to his arrest, Cortez worked as a fisherman in

Ecuador.    Cortez met with a man named "Abraham," another local

fisherman, who offered Cortez $2,000 to join the crew of one of

Abraham's vessels on a trip to Guatemala.           Cortez and two other

crew members set out from Ecuador in January 2015 on Abraham's

thirty-foot boat.    One of the two men served as the boat's captain,

the other was the boat's mariner, and Cortez helped steer the boat.

            The crew voyaged approximately 200 nautical miles to

rendezvous at sea with Abraham, who was aboard another vessel.

Abraham supplied the crew with cocaine bales and fuel containers.

The three-person crew then continued for approximately 400 miles

before the Coast Guard intercepted the boat about 291 miles south


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of the Guatemala-El Salvador border.       Shortly before the Coast

Guard boarded the vessel, Cortez and his confederates realized

that they were being tracked and started throwing the cocaine bales

and excess fuel tanks overboard.       When it apprehended the crew,

the Coast Guard determined that the vessel was without nationality

and thus subject to United States jurisdiction.         46 U.S.C. §

70502(c)(1)(A).    About 433 kilograms of cocaine were recovered

from the scene.

           Cortez and the two other men were brought to Puerto Rico,

where, in February 2015, a grand jury indicted them on two counts.

The first count alleged that the three men conspired to possess

with the intent to distribute a controlled substance on board a

vessel subject to the jurisdiction of the United States, in

violation of 46 U.S.C. §§ 705031(a)(1), 70504(b)(1) and 70506(a)

and (b).   The second count alleged that the men possessed, and

aided and abetted the possession, with the intent to distribute a

controlled substance on board a vessel subject to the jurisdiction

of the United States, in violation of 46 U.S.C. §§ 705031(a)(1),

70504(b)(1) and 70506(a) and (b).   Cortez entered an unconditional

guilty plea in October 2016.

           At sentencing, Cortez contested the PSR's recommendation

that he be denied a two-level downward minor role adjustment under

U.S.S.G. §3B1.2(b).    Cortez claimed that he played a minor role

because he "was only a small part of" an "overall very large


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conspiracy."     Agreeing with the PSR's recommendation, the district

court denied Cortez's request on the ground that Cortez was

responsible for transporting 433 kilograms of cocaine across the

ocean.    The     court   sentenced     Cortez    to    a    bottom-of-the-range

guidelines sentence of 108 months.            After being sentenced, Cortez

seasonably filed this appeal.

                                        II.

           We apply an abuse of discretion standard of review to

procedural challenges to sentences.            United States v. Coleman, 854

F.3d 81, 84-85 (1st Cir. 2017).          Within this framework, we review

the district court's conclusions of law de novo and its findings

of fact for clear error.        Rossignol, 780 F.3d at 477.          And because

"[r]ole   in-the-offense        determinations         are    notoriously    fact-

specific," "absent a mistake of law," we will only reverse the

district court's decision if it is clearly erroneous.                       United

States v. Perez, 819 F.3d 541, 545-46 (1st Cir. 2016)(internal

citations omitted).          Because a district court's choice between

multiple permissible inferences cannot be clearly erroneous, we

will   "rarely    reverse[]    a   district     court's      decision   regarding

whether to apply a minor role adjustment." United States v. Bravo,

489 F.3d 1, 11 (1st Cir. 2007) (citing United States v. Tom, 330

F.3d 83, 95 (1st Cir. 2003)).

           A     defendant    seeking    a    minor    role    adjustment    under

U.S.S.G. §3B1.2(b) must demonstrate by a preponderance of the


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evidence      that:    (1)   they      are      less    culpable    than    their       co-

conspirators or accomplices; and (2) they are less culpable than

"most of those who have perpetrated similar crimes." United States

v. Mateo-Espejo, 426 F.3d 508, 512 (1st Cir. 2005).                      Overcoming an

adverse minor role decision is a difficult burden for a defendant

to meet on appeal, for the district court's determination is, as

noted, "invariably fact-specific and, thus, appellate review of

such a determination is respectful."                    United States v. Meléndez-

Rivera, 782 F.3d 26, 28 (1st Cir. 2015).

              "[A] defendant need not be the key figure in a conspiracy

in   order      to     be    denied        a     mitigating      role-in-the-offense

adjustment."         See id. at 29.            In Meléndez-Rivera, we rejected a

drug-smuggler's argument that he played a minor role simply because

he characterized himself "as an 'expendable cog' in the venture"

and because he was not the conspiracy's leader.                      Id.    Similarly,

we   upheld    the    denial      of   a   minor       role    adjustment       where   the

defendant's sole role was hauling a single shipment of thirty

kilograms of cocaine by truck.                 United States v. Vargas, 560 F.3d

45, 50 (1st Cir. 2009).

              Moreover,      in   United        States    v.    Perez,     we    recently

rejected a defendant's argument that he was a minor participant in

a nautical narcotics-smuggling scheme because he merely assisted

in transporting drugs across the sea. 819 F.3d at 545-46. Similar

to Cortez, the defendant in Perez also protested that "he played


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a bit part" compared to the drugs' owners and U.S. distributors.

We rejected those claims because "[w]hen two persons undertake to

transport by themselves a large quantity of drugs in a long and

hazardous voyage at sea, it is not clear error for a sentencing

court to regard each as a principal and refuse to grant any

mitigating role adjustment."   Id. at 546.

          Perez controls this case.    Like the defendant in Perez,

Cortez asserts that he is entitled to a minor role adjustment

because he only assisted in transporting the drugs across the sea.

Here, Cortez helped steer the vessel and he was one of just three

crew members who, by themselves, and otherwise unsupervised, moved

a large quantity of drugs hundreds of miles over the Eastern

Pacific Ocean.   Accordingly, the district court's determination

that Cortez was not less culpable than his codefendants or the

average seafaring drug smuggler falls far short of clear error.

Therefore, the district court did not abuse its discretion when it

declined to assign to Cortez a two-level downward minor role

adjustment under U.S.S.G. §3B1.2(b).

                               III.

          For the foregoing reasons, we AFFIRM Cortez's sentence.




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