                                                                       [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                         FOR THE ELEVENTH CIRCUIT                   U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                        -------------------------------------------        July 28, 2008
                                     No. 07-14052                      THOMAS K. KAHN
                               Non-Argument Calendar                         CLERK
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                       D.C. Docket No. 06-14054-CR-DLG

UNITED STATES OFAMERICA,

                                                         Plaintiff-Appellee,

                                          versus

ARTURO CLARO,

                                                         Defendant-Appellant.

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                   Appeal from the United States District Court
                        for the Southern District of Florida
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                                    (July 28, 2008)

Before EDMONDSON, Chief Judge, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

      Arturo Claro (“Defendant”) appeals his 18-month sentence for conspiracy to

manufacture, distribute, and dispense marijuana plants in violation of 21 U.S.C. §§

841(a)(1) and 846. No reversible error has been shown; we affirm.
      Defendant and 18 others were charged in a 16-count superseding indictment

for crimes arising from a conspiracy to grow and to sell marijuana. A three-day

jury trial was held; but when the jury deadlocked, the district court declared a

mistrial. Rather than submit to a re-trial, Defendant pled guilty to Count 15 of the

indictment for conspiracy to manufacture, distribute, and dispense 100 or more

marijuana plants.

      According to the presentence investigation report (“PSI”), Defendant was

responsible for 565 plants and 9.98 kilograms of marijuana (equivalent to a total

of 66.48 kilograms of marijuana) found at various locations. Pursuant to U.S.S.G.

§ 2D1.1, the PSI set Defendant’s base offense level at 22. Because a firearm was

found at Defendant’s residence, the offense level was increased by two, pursuant

to section 2D1.1(b)(1). As a result, the total offense level was 24. Because

Defendant had no criminal history points, his Guidelines range was initially

calculated at 51 to 63 months’ imprisonment. Pursuant to 21 U.S.C. §

841(b)(1)(B), however, Defendant’s statutory minimum sentence was five years.

Accordingly, his Guidelines range was adjusted upward in accordance with

U.S.S.G. § 5G1.1(c)(2) and set at 60 to 63 months’ imprisonment.

      Defendant objected to the PSI on several grounds. In response to

Defendant’s objections, the Government agreed to hold Defendant responsible

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only for the 322 plants located at the residence where he was staying and for 29

additional plants harvested at another location. The Government further agreed

not to challenge Defendant’s eligibility for relief under the safety-valve provision

of U.S.S.G. § 5C1.2; and it also conceded that Defendant should receive a

sentence reduction for acceptance of responsibility. At the sentencing hearing,

Defendant argued that he was entitled to a minor-role reduction of two levels

under U.S.S.G. § 3B1.2. Defendant asserted that he was involved in the

conspiracy for a “relatively short period of time” and that other co-conspirators

were more involved. Defendant also claimed that he did not own the plants or the

house where they were grown and that he merely “helped cultivate” the plants

along with other co-conspirators.

      The district court denied Defendant’s request for a minor-role adjustment

based on its finding that Defendant was “personally responsible” for the 322

plants at his residence and for the firearm located there. The district court also

determined that Defendant’s involvement was substantial compared to many other

participants in the conspiracy. After considering all the evidence, the district court

found that Defendant had been involved in the conspiracy for four to six weeks

and that he had been responsible for 322 marijuana plants. As a result, the court

set the offense level at 15 and calculated the Guidelines range to be between 18

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and 20 months’ imprisonment. Based on the factors listed in 18 U.S.C. § 3553(a),

the district court sentenced Defendant to 18 months in prison, a sentence at the

low end of the Guidelines range.

      The sole issue that Defendant raises on appeal is whether the district court

erred in denying his request for a minor-role adjustment. Defendant contends that

his role was minor because he did not own the plants or the house where they were

grown, he did not set the house up for growing the plants, he participated in the

conspiracy for only four to six weeks, and he never received payment for his

involvement in the conspiracy. Defendant also argues that he was less culpable

than the other co-conspirators in the house, especially the owners.

      Defendant bears the burden of establishing his role by a preponderance of

the evidence. See United States v. Ryan, 289 F.3d 1339, 1348 (11th Cir. 2002). A

court’s decision about “a role adjustment is premised on a case-by-case factual

inquiry.” Id. Two elements are considered in determining whether a defendant

merits a minor-role reduction. First, the district court must consider “whether a

defendant’s particular role was minor in relation to the relevant conduct attributed

to him in calculating his base offense level.” Id. A downward adjustment may be

applied only if the defendant played a relatively minor role in the conduct for

which the defendant has already been held accountable: “not a minor role in any

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larger criminal conspiracy.” Id. at 1348-49. The second element, if reached,

“requires the district court to assess a defendant’s relative culpability vis-a-vis that

of any other participants.” Id. at 1349. A district court’s determination of a

defendant’s role in an offense is a finding of fact that is reviewed only for clear

error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).

      We are unconvinced that the district court committed clear error in finding

that Defendant played more than a minor role in the relevant conspiracy. On the

record before us, that Defendant has failed to satisfy the first element of the

minor-role reduction analysis is clear. Although many more plants were involved

in the conspiracy, the district court set Defendant’s offense level based only on the

322 plants found at the residence where he was living. The district court’s finding

that Defendant was “personally responsible” for those plants is amply supported

by the record. Defendant has acknowledged that he “helped cultivate” the plants.

In addition, testimony offered by the Government showed that Defendant lived

where the plants were grown for at least “several weeks” and that he helped

harvest the plants.

      In the light of these facts, it appears that the conduct attributed to Defendant

for sentencing purposes – namely, that he helped cultivate the 322 marijuana

plants at his residence – is identical to his actual conduct. At the very least, the

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role Defendant played at his residence – even if not identical – was certainly not

minor in relation to the conduct attributed to him. We conclude, therefore, that

Defendant has not met his burden of establishing “that [he] played a relatively

minor role in the conduct for which [he] has already been held accountable” and

that, as a result, he is not entitled to a downward adjustment. See Ryan, 289 F.3d

at 1348-49 (internal quotation marks omitted). Because Defendant has failed the

first element of the minor-role reduction analysis, we need not consider the

second. The district court’s decision to deny Defendant a minor-role adjustment

was not clear error.

      AFFIRMED.




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