                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                      FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               February 6, 2007
                              No. 06-13732                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 06-00025-CR-T-26EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

CARLOS ANTONIO VERGARA-DOMINGUEZ,


                                                          Defendant-Appellant.




                        ________________________

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

                             (February 6, 2007)

Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:
      Carlos Antonio Vergara-Dominguez appeals his two concurrent 135-month

sentences for possession with 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. app. § 1903(a), (g), and 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to

possess with 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. app.

§ 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii). On appeal, Vergara-

Dominguez argues that the district court clearly erred in denying a mitigating-role

adjustment and that his sentence is unreasonable. For the reasons set forth more

fully below, we affirm.

      Vergara-Dominguez and seven codefendants were indicted on the above-

mentioned charges, to which Vergara-Dominguez pled guilty. According to the

presentence investigation report (“PSI”), on January 12, 2006, the U.S. Coast

Guard obtained permission to board and search a Panamanian commercial

freighter, ultimately finding 50 bales of cocaine, which weighed 1,134 kilograms.

Vergara-Dominguez was identified as the deck seaman, and the other seven

codefendants held the following positions: captain, chief and second engineers,

first and second officers, machinist, and cook. The freighter’s route took it from

Spain, to Trinidad, to the Dominican Republic, to Guyana, and to Haiti. In the



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early morning hours of January 12, 2006, the entire crew participated in the

transfer of the 50 bales of cocaine from a go-fast vessel off the coast of Venezuela.

Vergara-Dominguez was held accountable for 1,134 kilograms of cocaine at

sentencing.

      Vergara-Dominguez objected to the failure of the PSI to provide an

adjustment for his role in the offense, arguing that he should receive a mitigating-

role adjustment based on his lack of financial interest in the drugs or knowledge of

the plans for the drugs’ delivery, his limited role of lifting the cocaine bales, his

lowest rank aboard the vessel, and role reductions granted to similarly situated

defendants in similar boat cases. The district court overruled Vergara-

Dominguez’s objection, relying on the amount of drugs involved and reasoning

that Vergara-Dominguez’s labor was necessary to the cocaine smuggling scheme.

After considering the advisory Guidelines and the 18 U.S.C. § 3553(a) factors, the

court explained that, given the large quantity of cocaine, which was intended for

distribution, the offense was serious. The court found that a sentence within the

Guidelines range was reasonable based on the seriousness of the offense,

promotion of respect for the law, providing just punishment, deterrence, and the

advisory Guidelines. The district court concluded that a sentence at the low end of

the advisory Guideline range was reasonable and appropriate, and sentenced



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Vergara-Dominguez to two concurrent terms of 135 months’ imprisonment and

five years’ supervised release.

                             I. Mitigating-role reduction

      On appeal, Vergara-Dominguez challenges the denial of a role reduction

based on his limited role, further contending that the district court failed to

consider his role as compared to others not on the vessel or his lack of a role in

planning the criminal scheme. He also argues that the district court did not attempt

to reconcile his sentence with other similarly situated defendants who were found

to have played a minor role. In addition, he contends that the district court

effectively placed the burden on him to establish that he played less than an

aggravated role.

      “[A] district court’s determination of a defendant’s role in the offense is a

finding of fact to be reviewed only for clear error.” United States v. De Varon, 175

F.3d 930, 937 (11th Cir. 1999) (en banc). Section 3B1.2 of the Sentencing

Guidelines provides for a two-level decrease if the defendant was a minor

participant in any criminal activity, a four-level decrease if the defendant was a

minimal participant, and a three-level decrease for participation between minor and

minimal. U.S.S.G. § 3B1.2. Section 3B1.2 permits an adjustment to the Guideline

range for a defendant who is substantially less culpable than the average



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participant. Id. § 3B1.2, comment. (n.3). A minimal participant is “plainly among

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

comment. (n.4). “[T]he defendant’s lack of knowledge or understanding of the

scope and structure of the enterprise and of the activities of others is indicative of a

role as minimal participant.” Id. A defendant is a minor participant if he is less

culpable than most other participants, but his role cannot be described as minimal.

Id. § 3B1.2, comment. (n.5). “The defendant bears the burden of proving his minor

role by a preponderance of the evidence.” United States v. Boyd, 291 F.3d 1274,

1277 (11th Cir. 2002).

      In determining a defendant’s mitigating role in the offense, the district court

first “must measure the defendant’s role against the relevant conduct for which [he]

was held accountable at sentencing” and, second, “may also measure the

defendant’s role against the other participants, to the extent that they are

discernable, in that relevant conduct.” De Varon, 175 F.3d at 945. Where a drug

courier’s relevant conduct is limited to his own criminal act, a district court may

legitimately conclude that the courier played an important or essential role in that

crime. See id. at 942-43. Furthermore, “where the relevant conduct attributed to a

defendant is identical to [his] actual conduct, [he] cannot prove that [he] is entitled

to a minor role adjustment simply by pointing to some broader criminal scheme in



                                            5
which [he] was a minor participant but for which [he] was not held accountable.”

Id. at 941. As to the second prong, “the district court must determine that the

defendant was less culpable than most other participants in [his] relevant conduct.”

Id. at 944. Moreover, relative culpability is not necessarily dispositive, as none of

the participants may have played a minor or minimal role. Id.

      As Vergara-Dominguez was the proponent of a downward adjustment, he

did not improperly bear the burden of proving his mitigating role. Id. at 939. The

district court’s findings were sufficient, as the “district court is not required to

make any specific findings other than the ultimate determination of the defendant’s

role in the offense.” Id. at 940. Our review of the court’s ultimate determination

leads us to conclude that there was no clear error in this case.

      With respect to the first prong of the De Varon analysis, Vergara-

Dominguez was held accountable only for the 1,134 kilograms of cocaine aboard

the vessel, which he helped to transfer from the go-fast boat onto his ship. Because

his actual and relevant conduct were the same, Vergara-Dominguez cannot

demonstrate his entitlement to a minor-role reduction by relying on a broader

criminal scheme in which he only played a minor part. Id. at 941. Moreover, with

respect to the second prong of the De Varon analysis, the only other participants

discernable from the evidence and involved in the relevant conduct attributed to



                                            6
Vergara-Dominguez were the seven other crew members; the conduct of

participants in a larger criminal conspiracy is irrelevant. Id. at 944. Along with the

rest of the crew, Vergara-Dominguez transferred the 50 bales of cocaine from the

go-fast boat and onto their ship. Aside from claiming that he only assisted in

lifting the drugs and relying on his position, Vergara-Dominguez provided no

evidence showing that his responsibilities aboard the vessel were less important to

the enterprise than those of the other crew members. Because Vergara-

Dominguez’s actual and relevant conduct were one and the same and involved

1,134 kilograms of cocaine, Vergara-Dominguez provided no evidence showing

that his responsibilities aboard the vessel were less important to the enterprise than

those of the other crew members, and Vergara-Dominguez participated in

transferring the cocaine onto the vessel, we hold that the district court did not

clearly err in denying a mitigating-role adjustment.

                           II. Reasonableness of Sentence

      Vergara-Dominguez argues that his sentence was unreasonable, due to his

responsibility for family members who lived in poverty and without government

assistance, and because of coercion. He further argues that a sentence below the

Guidelines range would have been sufficient, but not greater than necessary to

comply with 18 U.S.C. § 3553, and that the district court failed to consider the



                                           7
need to avoid unwarranted sentence disparities.

      We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).

We consider the factors outlined in 18 U.S.C. § 3553(a) and the district court’s

reasons for imposing the particular sentence. United States v. Williams, 456 F.3d

1353, 1360-61 (11th Cir. 2006), pet. for cert. filed, (U.S. Oct. 19, 2006) (No. 06-

7352). The § 3553(a) factors take into account:

       (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). While the district

court must consider the § 3553(a) factors, it is not required to discuss each factor.

Id. “[T]here is a range of reasonable sentences from which the district court may

choose” and the burden of establishing that the sentence is unreasonable in light of

the record and the § 3553(a) factors lies with the party challenging the sentence.

Id. at 788. “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court[,]” and “[w]e will not

                                           8
substitute our judgment in weighing the relevant factors . . . .” Williams, 456 F.3d

at 1363. “When reviewing the length of a sentence for reasonableness, we will

remand for resentencing if we are left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a) factors

by arriving at a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.” Id.

      The district court did not fail to consider the need to avoid unwarranted

sentence disparities, as it stated that it considered the § 3553(a) factors, and it was

not required to discuss each factor. Talley, 431 F.3d at 786. The district court,

having already rejected Vergara-Dominguez’s coercion argument as it related to a

downward departure under the Guidelines due to the absence of credible evidence,

focused on the seriousness of the offense, promotion of respect for the law,

providing just punishment, deterrence, and the advisory Guidelines in reaching a

reasonable sentence. Given the district court’s finding that there was no credible

evidence supporting a downward departure based on coercion and its reliance on

the above-mentioned § 3553(a) factors, Vergara-Dominguez cannot meet his

burden to establish that his 135-month sentence, at the low end of the advisory

Guidelines range, is unreasonable.

      In light of the foregoing, we AFFIRM.



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