                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________             FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14842         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JULY 22, 2011
                                      ________________________        JOHN LEY
                                                                        CLERK
                           D.C. Docket No. 1:08-cr-00223-WSD-ECS-3

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellee,

                                              versus

FILIBERTO ALANIS-SOTO,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (July 22, 2011)



Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Filiberto Alanis-Soto appeals his 117-month sentence—imposed below the

recommended United States Sentencing Guidelines (“U.S.S.G.”) range—after

pleading guilty to one count of conspiracy to possess with intent to distribute

controlled substances, including at least 5 kilograms of a mixture or substance

containing a detectable amount of cocaine and at least 500 grams of a mixture or

substance containing a detectable amount of methamphetamine, in violation of 21

U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(ii)(II), (b)(1)(A)(viii). On appeal, he

makes two arguments: (1) the district court committed clear error by denying his

request for a minor-role reduction under U.S.S.G. § 3B1.2(b); and (2) the district

court imposed a substantively unreasonable sentence by failing to give adequate

weight to the 18 U.S.C. § 3553(a)(6) disparity factor. We disagree and affirm.

                                           I.

      We review a district court’s determination of a defendant’s qualification for

a role reduction for clear error. United States v. Alvarez-Coria, 447 F.3d 1340,

1343 (11th Cir. 2006) (per curiam). “Both the guidelines and the relevant

statutory language . . . explicitly recognize that a district court’s determination of a

defendant’s role in the offense is essentially factual and that such findings must be

afforded deference.” United States v. Rodriguez De Varon, 175 F.3d 930, 938

(11th Cir. 1999) (en banc). “[T]he proponent of the downward adjustment bears

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the burden at all times of establishing [his] role in the offense by a preponderance

of the evidence.” Id. at 934. U.S.S.G. § 3B1.2(b) provides for a two-level

reduction in a defendant’s base offense level if the court determines that he was a

minor participant in the offense. A minor participant is any participant “who is

less culpable than most other participants, but whose role could not be described

as minimal.” Id. cmt. nn.3 & 5.

      The process for determining whether a defendant is entitled to a minor-role

reduction is well settled. De Varon, 175 F.3d at 934. First, the district court must

measure the defendant’s role against the relevant conduct for which he is being

held accountable. Id. at 945. This inquiry will often be dispositive. Id. If the

defendant’s actual conduct is identical to the relevant conduct considered for

sentencing purposes, the defendant cannot prove that an adjustment is appropriate

“simply by pointing to some broader criminal scheme in which [he] was a minor

participant but for which [he] was not held accountable.” Id. at 941. The second

prong of the minor-role reduction analysis permits a district court to compare the

defendant to the other participants in the conspiracy to the extent that the others

(1) are identifiable or discernable from the evidence; and (2) were involved in the

relevant conduct attributed to the defendant. Id. at 944.




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      We have said that, “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. We have set forth a non-exhaustive list of factors for the district

court to consider in determining whether a drug courier should receive a minor-

role reduction, including: (1) the amount of drugs; (2) their fair market value; (3)

the amount of money to be paid to the courier; (4) any equity interest the courier

might have in the drugs; (5) the courier’s role in planning the criminal scheme;

and (6) the courier’s role in distribution. Id. at 945. Under some circumstances,

the amount of drugs may be dispositive to precluding a defendant from a minor-

role reduction. Id. at 943. “It is entirely possible for conspiracies to exist in which

there are no minor participants . . . .” United States v. Zaccardi, 924 F.2d 201, 203

(11th Cir. 1991).

      The district court did not clearly err in determining that Alanis-Soto was not

entitled to a minor-role reduction under U.S.S.G § 3B1.2(b). Alanis-Soto was

held accountable for only the drugs with which he was caught and agreed to

transport—approximately 12 kilograms of cocaine and 1.3 kilograms of

methamphetamine. Moreover, he was essential to the success of the drug-

trafficking scheme. The district court did not err when it determined that Alanis-

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Soto’s role in the conspiracy was “central, it was at least average, . . . maybe

average plus.” Alanis-Soto drove a vehicle from Atlanta to Mexico and waited

while that vehicle was outfitted with drugs; he picked up an elderly woman and a

child in Texas and used them as cover; he was in the process of transporting the

drug-laced vehicle to Atlanta when he was arrested in Mississippi. Alanis-Soto’s

role in the conspiracy was likely greater than all but a few parties. Additionally,

Alanis-Soto showed both that he had more than limited knowledge of the

conspiracy and that he expected to receive significant compensation for his

participation: $20,000 in the form of a vehicle and $500 for gas. The district court

did not err when it determined that Alanis-Soto was as culpable as most other

participants in his relevant conduct, and thus it correctly denied his request for a

minor-role reduction.

                                          II.

      We review the reasonableness of a sentence, “[r]egardless of whether the

sentence imposed is inside or outside of the Guidelines range,” under the

deferential abuse-of-discretion standard of review. Gall v. United States, 552 U.S.

38, 51, 128 S. Ct. 586, 597 (2007). This Court reverses only if “‘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

                                           5
outside the range of reasonable sentences dictated by the facts of the case.’”

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc), cert. denied,

131 S. Ct. 1813 (2011) (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th

Cir. 2008)). “The fact that the appellate court might reasonably have concluded

that a different sentence was appropriate is insufficient to justify reversal of the

district court.” Gall, 552 U.S. at 51.

      We must evaluate a sentence’s substantive reasonableness in light of the

totality of the circumstances and the § 3553(a) factors. Id. “‘The weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court.’” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.

2008) (per curium) (quoting United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007)). “A sentence may be substantively unreasonable if a district court

unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent

§ 3553(a) factors, selected the sentence arbitrarily, or based the sentence on

impermissible factors.” United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir.

2009). The burden of establishing that a sentence is unreasonable lies with the

party challenging the sentence. Pugh, 515 F.3d at 1189.

      The district court did not abuse its discretion by sentencing Alanis-Soto to a

117-month sentence that varied downward from the recommended Guidelines

                                           6
sentence of 135–168 months. The district court weighed all factors under

§ 3553(a), took into account Alanis-Soto’s medical condition, considered what

would deter and be a just punishment, and determined what was fair with respect

to the others who have been sentenced when it determined the length of Alanis-

Soto’s sentence.

       Specifically, Alanis-Soto argues that the district court did not give adequate

weight to the § 3553(a)(6) disparity factor. We reject this argument.

Section 3553(a)(6) requires a sentencing court to consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” (emphasis added). Furthermore, we have

stated that “[d]isparity between sentences imposed on co-defendants is generally

not an appropriate basis for relief on appeal.” United States v. Reguiero, 240 F.3d

1321, 1325–26 (11th Cir. 2008) (per curium). The district court did not abuse its

discretion when it determined that co-conspirators Juan Aleman1 and Mario

Hernandez-Loesa2 were not similarly situated to Alanis-Soto. Aleman and




       1
         Aleman pleaded guilty to a money laundering offense and received a 57-month sentence
within the recommended Guidelines range.
       2
         Hernandez-Loesa pleaded guilty to being an illegal alien in known possession of a
firearm and received a 14.5-month sentence within the recommended Guidelines range.

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Hernandez-Loesa pleaded guilty to other charges and had their drug-trafficking

charges dismissed for lack of evidence.

      Careful review of the record indicates that the district court properly

considered all of the § 3553(a) factors and did not impose a substantively

unreasonable sentence.

                                          III.

      For the foregoing reasons, we affirm Alanis-Soto’s sentence.

AFFIRMED.




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