                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              December 20, 2007
                              No. 07-10933                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 06-00489-CR-T-26-MSS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ALFREDO RUIZ-HERNANDEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                            (December 20, 2007)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Alfredo Ruiz-Hernandez appeals his 24-month sentence for transporting
illegal aliens for commercial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),

(B)(i). Ruiz-Hernandez, a native and citizen of Mexico, was apprehended in the

United States by U.S. Border Patrol (“USBP”) agents while transporting five

illegal aliens, one of whom was 15 years old, from California to Florida. On

appeal, Ruiz-Hernandez argues that the district court erred by (1) applying the

sentence enhancement for transporting an unaccompanied minor pursuant to

U.S.S.G. § 2L1.1(b)(4); (2) finding that he did not qualify for a minor-role

reduction under U.S.S.G. § 3B1.2; and (3) refusing to grant him a sentence

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

I.    Transporting a Minor

      The Sentencing Guidelines provide for a two-level increase if a defendant

“smuggled, transported, or harbored a minor who was unaccompanied by the

minor’s parent or grandparent.” U.S.S.G. § 2L1.1(b)(4). A minor is defined as

someone under the age of 16. U.S.S.G. § 2L1.1 cmt. n.1. Ruiz-Hernandez argues

that the district court erred in applying § 2L1.1(b)(4) because (1) the district court

wrongly concluded that the enhancement lacked a scienter requirement, and (2) the

evidence was insufficient to establish that one of the aliens was a minor.

      We review the district court’s interpretation of the Sentencing Guidelines de

novo, including its determination that an enhancement does not require scienter.



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United States v. McClain, 252 F.3d 1279, 1284 (11th Cir. 2001). Here, the district

court correctly determined that § 2L1.1(b)(4) does not require scienter; on its face,

the guideline clearly applies regardless of whether the defendant had knowledge of

the minor’s age. See id. at 1286.1

       We review the district court’s factual findings for clear error. Id. at 1284.

For a factual finding to be clearly erroneous, we must be “left with a definite and

firm conviction that a mistake has been committed.” United States v. Robertson,

493 F.3d 1322, 1330 (11th Cir. 2007) (internal quotation marks omitted) (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L.

Ed. 2d 518 (1985)). When a defendant challenges a factual basis of his sentence,

the government bears the burden of establishing the disputed fact by a

preponderance of the evidence. United States v. Cataldo, 171 F.3d 1316, 1321

(11th Cir. 1999).

       The district court did not clearly err by applying § 2L1.1(b)(4) because the

government established, by a preponderance of the evidence, that Ruiz-Hernandez


       1
          In McClain we found that U.S.S.G. § 3B1.4 (using a minor to commit a crime) lacked a
scienter requirement as to the minor’s age because it did not contain “qualifying language
reserving the enhancement for defendants who knew that the [relevant individual] was a minor.”
252 F.3d at 1286. We further reasoned that requiring the government to prove scienter at
sentencing “would simply encourage defendants to close their eyes and ears” and, moreover, that
the “defendant’s knowledge of a minor’s age would be nearly impossible to prove, and would
undoubtedly be the subject of lengthy ‘mini-trials.’ Such application . . . would render the
sentencing enhancement practically impotent, and . . . frustrate the legislative intent behind its
enactment.” Id.

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transported a minor. The minor passenger was in possession of his birth

certificate, which a USBP agent testified appeared valid. Although Ruiz-

Hernandez speculated that the document may not have belonged to its holder, he

provided no evidence to support this allegation or otherwise rebut the

government’s proffered evidence. Accordingly, the birth certificate was sufficient

to prove its holder’s age by a preponderance.2

II.    Minor-Role Reduction

       A district court’s determination of a defendant’s role in an offense

constitutes a factual finding to be reviewed for clear error. United States v.

Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant

bears the burden of proving, by a preponderance of the evidence, that he is entitled

to a mitigating-role reduction under U.S.S.G. § 3B1.2. Id. at 939. To determine

whether the reduction applies, a district court first should measure the defendant’s

role against the relevant conduct for which he has been held accountable. Id. at

940. “Only if the defendant can establish that [he] played a relatively minor role in

the conduct for which [he] has already been held accountable–not a minor role in

any larger criminal conspiracy–should the district court grant a downward



       2
         Furthermore, because it would be nearly impossible for the government to obtain photo
identification in most cases of this nature, requiring this type of proof would thwart the
intentions of Congress to punish those who transport minors.

                                               4
adjustment for minor role in the offense.” Id. at 944.

       Although, in many cases, this first method of analysis will be dispositive, the

district court also may measure the defendant’s culpability in comparison to that of

other participants in the relevant conduct. Id. at 944-45.

       Ruiz-Hernandez’s role in the offense was identical to the conduct for which

he was held accountable, and he did not show that he was substantially less

culpable than the other participant in the offense. Although he asserts that his

conduct was “nothing more than transporting” the other aliens in his car, this was

exactly the conduct for which he was held accountable. Accordingly, the district

court did not clearly err in denying Ruiz-Hernandez a minor-role reduction.

III.   Acceptance of Responsibility

       We review for clear error a district court’s factual findings concerning a

reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). United

States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005) (per curiam). “The

defendant bears the burden of clearly demonstrating acceptance of responsibility

and must present more than just a guilty plea.” United States v. Sawyer, 180 F.3d

1319, 1323 (11th Cir. 1999). “A district court’s determination that a defendant is

not entitled to [a reduction for] acceptance of responsibility will not be set aside

unless the facts in the record clearly establish that a defendant has accepted



                                           5
personal responsibility.” Id.

      In determining whether a defendant qualifies for a reduction under §

3E1.1(a), the district court may consider the nature of the defendant’s legal

challenges to his conviction and sentence, along with the other circumstances of

the case. United States v. Smith, 127 F.3d 987, 989 (11th Cir. 1997) (en banc). We

have held that factual objections to the sentence that amount to a denial of factual

guilt are inconsistent with acceptance of responsibility. Id.

      Ruiz-Hernandez did not meet his burden of “clearly demonstrating” his

acceptance of responsibility because the court found that he was not truthful at his

sentencing hearing when he denied certain statements he made to a USBP agent,

which amounted to a denial of factual guilt. See id. Thus, although Ruiz-

Hernandez pled guilty to the offense, his denial was inconsistent with acceptance

of responsibility and, therefore, he did not meet his burden. Accordingly, we

affirm.

      AFFIRMED.




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