                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________  ELEVENTH CIRCUIT
                                                            DECEMBER 3, 2007
                              No. 07-11831                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 06-00365-CR-T-27TBM

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                    versus

JORGE FREDY ASPRILLA,

                                                       Defendant-Appellant.


                        ________________________

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

                               (December 3, 2007)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     After pleading guilty, Jorge Asprilla appeals his 135-month sentences
imposed for conspiracy to possess with intent to distribute five 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. app. § 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii),

and possession with intent to distribute five 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. app. § 1903(a) and (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii).1

After review, we affirm.

                                  I. BACKGROUND

       On August 24, 2006, the United States Coast Guard (“USCG”) boarded the

Frutos del Mar, a Colombian fishing vessel, in international waters. Eight crew

members, including the defendant, Jorge Asprilla, were on the vessel. The USCG

arrested defendant Asprilla after discovering 105 bales of cocaine, weighing

approximately 2,500 kilograms. Two co-defendants, Abel Rosero and Eri Ibarra-

Salas, were identified as the vessel’s captain and engineer, respectively.

       Defendant Asprilla pled guilty to both counts. The Presentence

Investigation Report (“PSI”) assigned him a base offense level of 38, pursuant to

U.S.S.G. § 2D1.1(c)(1), based on the amount of cocaine found on the vessel. The


       1
        On October 6, 2006, the appendix to Title 46 containing the subject provisions was
repealed and recodified at 46 U.S.C. §§ 70503 and 70506 with no relevant changes. Pub. L. No.
109-304, 120 Stat. 1485 (2006).

                                              2
PSI recommended a two-level safety-valve reduction, pursuant to U.S.S.G. §

2D1.1(b)(9), and a three-level acceptance-of-responsibility reduction, pursuant to

U.S.S.G. § 3E1.1(a) and (b), resulting in a total adjusted offense level of 33.

Using a criminal history category of I, the PSI determined that Asprilla’s advisory

guidelines range was 135 to 168 months’ imprisonment.

      Asprilla filed an objection to the PSI, arguing that he should have received a

mitigating-role reduction pursuant to U.S.S.G. § 3B1.2. At sentencing, the district

court overruled Asprilla’s objection. The district court explained that Asprilla was

being held accountable for only the cocaine discovered onboard the vessel and

that, with the exception of the captain, Asprilla was as culpable as the rest of the

vessel’s crew. The district court noted that Asprilla’s responsibilities included

loading and unloading the cocaine.

      The district court sentenced Asprilla to 135 months’ imprisonment. Asprilla

filed this appeal.

                                 II. DISCUSSION

      On appeal, Asprilla argues that he should have received a mitigating-role

reduction because he was merely a crew member on the vessel with no interest in




                                          3
or control over the cocaine.2

             The Guidelines provide for a downward adjustment of two to four levels

based on a defendant’s mitigating role in an offense. U.S.S.G. § 3B1.2. There is 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.” U.S.S.G.

§ 3B1.2 cmt. n.3. A defendant who is a “minor participant” in the criminal

activity is entitled to a two-level reduction. U.S.S.G. § 3B1.2(b). 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 cmt. n.5. A defendant

who is a “minimal participant” in the criminal activity is entitled to a four-level

reduction. U.S.S.G. § 3B1.2(a). A minimal participant is one who is “plainly

among the least culpable . . . of a group.” U.S.S.G. § 3B1.2 cmt. n.4. The

defendant has the burden to establish his role in the offense by a preponderance of

the evidence. United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en

banc).




         2
        The district court’s determination of a defendant’s role in the offense is a finding of fact
that we review for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en
banc).

                                                 4
      In determining whether a mitigating-role reduction applies, the district court

is guided by two principles: (1) the defendant’s role in the offense compared to the

relevant conduct attributed to him in calculating his base offense level; and (2) the

defendant’s role compared to that of other participants in the offense. Id. at 940-

45. “[I]n the drug courier context . . . the amount of drugs imported is a material

consideration in assessing a defendant’s role in [his] relevant conduct . . . [and]

may be dispositive – in and of itself – in the extreme case.” Id. at 943.

Additionally, “when a drug courier’s relevant conduct is limited to [his] own act of

importation, 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.

      Here, we cannot say that the district court’s refusal to give Asprilla a

mitigating-role reduction was clear error. In calculating Asprilla’s offense level,

the district court held Asprilla accountable for only the cocaine found on the

vessel. Thus, Asprilla’s relevant conduct and his actual conduct are identical.

Furthermore, the 2,500 kilograms of cocaine found on the vessel is a substantial

amount of drugs.

      In addition, we cannot say Asprilla was substantially less culpable than the

average participant in the importation scheme. Although Asprilla, as a member of

the crew, may have been less culpable than the captain and perhaps the engineer,

                                          5
Asprilla was as culpable as the other five members of the crew, all of whom

engaged in the same conduct. See id. at 944 (explaining that it is possible that

some conspiracies will have no minor or minimal participants). Asprilla’s

emphasis on his limited involvement in the larger drug smuggling operation is

unavailing because he was held accountable only for the cocaine shipment found

on the vessel on this one trip. See id. (explaining that the district court should

compare the defendant’s role only to the other identifiable participants in the

relevant conduct and that “[t]he conduct of participants in any larger criminal

conspiracy is irrelevant”).

      Accordingly, the district court did not clearly err in denying Asprilla’s

request for a mitigating-role reduction.

       AFFIRMED.




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