                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 06-11355                SEPTEMBER 1, 2006
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                    D. C. Docket No. 04-20179-CR-DLG

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                   versus

OSCAR LUIS RAMOS ALARCON,

                                                      Defendant-Appellant.


                        ________________________

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

                             (September 1, 2006)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Oscar Luis Ramos Alarcon appeals his sentence, imposed after he was
convicted of importing heroin in violation of 21 U.S.C. § 963. He contends that

the district court erred in denying his request for a minor role reduction, pursuant

to U.S.S.G. § 3B.2 (2005). Under clear error review, we conclude that the district

court did not err in refusing to apply the minor role reduction because Alarcon

imported a substantial amount of heroin and he has not proven that his conduct was

less significant than other participants. Thus, we AFFIRM Alarcon’s sentence.

                                I. BACKGROUND

      A grand jury indicted Alarcon, with ten others, in an eight count indictment

charging various drug trafficking offenses. The four counts that applied to Alarcon

charged him with: (1) conspiring to import heroin, in violation of 21 U.S.C. § 963

(Count 1); (2) importing heroin, in violation of 21 U.S.C. § 952 (Count 4); (3)

conspiring to possess with intent to distribute heroin, in violation of 21 U.S.C.

§ 846 (Count 5); and (4) possessing with intent to distribute cocaine, in violation of

21 U.S.C. § 841 (Count 8). The statutory mandatory minimum penalty under

Count 1 was 120 months of imprisonment, and five years of supervised release. 21

U.S.C. § 960(b)(1). At a plea hearing in November 2005, Alarcon made no

objections to the government’s factual basis for the crime and pled guilty to Count

1, as per a written plea agreement. The court accepted his plea and adjudicated

him guilty.



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      According to the presentence investigation report (“PSI”), as a result of wire

tap interceptions in both the United States and Colombia, and surveillance in the

United States, on 7 April 2004, Alarcon was approached by U.S. law enforcement

agents in the lobby of a Miami, Florida, hotel, and consented to a search of his

luggage. Although the agents did not find any narcotics on the scene, they took the

luggage and later found over two kilograms of heroin that was well-concealed in

the siding of the luggage. The agents let Alarcon go, but when he returned to

Colombia he was captured, bound, and tortured by others in the conspiracy who

believed he had stolen the heroin. Alarcon was eventually arrested in Colombia

and extradited to the United States. Alarcon told the probation officer that he was

going to be paid $15,000 for transporting the heroin to the United States.

      Alarcon filed written objections to the first PSI, arguing that: (1) he should

receive the benefit of the safety valve; (2) his offense level should be reduced for

his minor role in the offense; and (3) he should be sentenced below the applicable

advisory guideline due to the fact that he was captured, bound, and tortured when

he returned to Colombia. In the Second Addendum to the PSI, the probation

officer explained that due to Alarcon’s objection regarding the safety valve, the

PSI had been revised to give him the benefit of that provision. The probation

officer also explained that a minor role adjustment was not warranted because



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Alarcon was only being held responsible for the heroin he had possessed, and the

officer further noted that Alarcon was more culpable than a number of his co-

defendants. Finally, the probation officer noted that the government had agreed to

a one level departure because Alarcon had been tortured.

      The revised PSI gave Alarcon a base offense level of 32, as per U.S.S.G.

§ 2D1.1(c)(4). The PSI subtracted two levels because he qualified for the safety

valve under U.S.S.G. § 5C1.2, as per U.S.S.G. § 2D1.1(b)(7), subtracted a further

two levels because Alarcon had accepted responsibility, as per U.S.S.G.

§ 3E1.1(a), and subtracted one level because the government had filed a motion

stating that he had assisted them, as per U.S.S.G. § 3E1.1(b). Thus, the PSI gave

Alarcon a total offense level of 27. The PSI listed no prior convictions resulting in

zero criminal history points and a criminal history of category I.

      With an offense level of 27 and a criminal history of category I, the PSI gave

Alarcon a Sentencing Guidelines range of 70 to 87 months of imprisonment and

three to five years of supervised release. The PSI noted that the statutory

mandatory minimum for the offense was a term of imprisonment of ten years, or

120 months, and a term of supervised release of at least five years. However,

because Alarcon qualified for the safety valve at U.S.S.G. § 5C1.2 and 18 U.S.C.

§ 3553(f), the PSI noted that the court could disregard the statutory mandatory



                                          4
minimum and sentence Alarcon according to the guidelines range.

      At the sentencing hearing, neither party raised additional objections to the

PSI. Both the issue of the two-level reduction through the safety valve and the

issue of the one-level departure in recognition of the fact that Alarcon had been

tortured were resolved without argument as the government told the court that it

agreed with both.

      As to the minor role adjustment, Alarcon’s counsel argued that Alarcon was

merely a courier, pointing out that he had no interest in the drugs, had no

knowledge of the kind or quantity of the drugs in the suitcase, and that someone

else had purchased his plane tickets for him. Further, he argued that the probation

officer’s response, that one of Alarcon’s co-defendants had a more minor role, was

incorrect, and described the co-defendant’s activities in support of his argument,

including alleging that the co-defendant had distributed almost 50 kilograms of

cocaine. However, the government argued that Alarcon’s counsel was incorrect

about the co-defendant, alleging that he had only purchased plane tickets for

couriers.

      The court then suggested that they “first look at the conduct of the

defendant.” R4 at 14. Alarcon’s counsel then confirmed that Alarcon knowingly

brought more than two kilograms of heroin into the country in the suitcase. The



                                          5
court noted that the amount of the drugs was only one factor, but found that “in this

particular case we have a defendant traveling from a foreign country with a

staggering amount of heroin . . . . [E]xtraordinary, to say the least.” Id. The court

also noted that while counsel had argued Alarcon was a typical courier, “frankly

the typical courier doesn’t have two kilos of heroin.” Id. at 15. The court

concluded that, “even before reaching the comparative conduct [prong],” his

conduct was so substantial as to disqualify him from receiving the minor role

adjustment. Id. The court did acknowledge Alarcon’s counsel had made a

comparative argument that was “well taken,” but accepted the government’s

explanation that the co-defendant had not had “direct involvement . . . equal to

[Alarcon’s] involvement.” Id.

      On this basis the court found that Alarcon “had not met his burden to

establish that he [was] entitled to the two-level reduction for minor role” and

adopted the probation officer’s analysis of the issue in the second addendum to the

PSI. Id. Accordingly, the court sentenced Alarcon to 64 months of imprisonment,

followed by five years of supervised release. After it imposed the sentence,

Alarcon preserved his objection to the court’s denial of his request for a minor role

reduction.




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                                       II. DISCUSSION

       On appeal, Alarcon argues that the district court erred when it refused to

give him an offense level reduction for playing only a minor role in the offense.1

Specifically, Alarcon argues that the court focused only on the drug amount, when

it should have considered additional factors, such as his: (1) lack of interest in the

drugs; (2) lack of decision-making authority; (3) simple role as a courier; and (4)

replaceability.

       We review a district court determination regarding a mitigating role

adjustment for clear error. United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir.

2002) (citing United States v. De Varon, 175 F.3d 930, 937-38 (11th Cir. 1999) (en

banc)). The defendant bears the burden of proof and must show his role was

minimal or minor by a preponderance of the evidence. Id. “So long as the basis of

the trial court’s decision is supported by the record and does not involve a

misapplication of a rule of law, . . . it will be rare for an appellate court to conclude



       1
         Alarcon timely filed his notice of appeal (“NOA”). The NOA correctly identified that
he was appealing his conviction and sentence, and included his correct district court case
number. However, the NOA stated that Alarcon was taking his appeal “to the United States
District Court of Appeals for the Southern District of Florida.” R1-251. Federal Rule of
Appellate Procedure 3(c) requires, inter alia, that a notice of appeal specify: (1) “the party or
parties taking the appeal”; (2) the judgment or other order being appealed; and (3) “the court to
which the appeal is taken.” Fed. R. App. P. 3(c)(1)(A)-(C). That said, our court has “discretion
to disregard irregularities in the form or procedure for filing a notice of appeal.” United States v.
Whitaker, 722 F.2d 1533, 1534 (11th Cir. 1984). Because this technical error has not deprived
any party of fair notice of Alarcon’s appeal, we have jurisdiction over this appeal. See id.

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that the sentencing court’s determination is clearly erroneous.” De Varon, 175

F.3d at 945.

      The Sentencing Guidelines provide for either a four-level or two-level

decrease where the defendant played a “minimal” or “minor” role, respectively, in

the charged offense. See U.S.S.G. § 3B1.2. A minor participant is one who is

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

as minimal.” Id., comment. (n.5). To determine whether the adjustment applies, a

district court “[f]irst, and most importantly, . . . must measure the defendant’s role

against the relevant conduct for which [he] was held accountable at sentencing; . . .

in many cases this method of analysis will be dispositive. Second, the district

court 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 (emphasis added). To reiterate De Varon, the district court must apply the first

principle, while it “may also” apply the second principle. Id.

      Further, there is no “presumption that drug couriers are never minor or

minimal participants, any more than that they are always minor or minimal.” Id. at

943. “Rather . . . the district court must assess all of the facts probative of the

defendant’s role in [his] relevant conduct in evaluating the defendant’s role in the

offense.” Id. Specifically, De Varon suggests that, with regard to couriers, the



                                            8
court might consider the following factors: “amount of drugs, fair market value of

drugs, amount of money to be paid to the courier, equity interest in the drugs, role

in planning the criminal scheme, and role in the distribution.” Id. at 945. Finally,

“because the amount of drugs in a courier’s possession–whether very large or very

small–may be the best indication of the magnitude of the courier’s participation in

the criminal enterprise, we do not foreclose the possibility that amount of drugs

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

      Here, Alarcon was sentenced for conspiring to import two kilograms of

heroin, and he admitted he had personally transported that amount into the country.

He told the probation officer that he expected to receive $15,000 as payment,

which is a strong indication that the total street value of the drugs was quite

significant. Moreover, the district court noted the very large amount of heroin that

Alarcon had transported, referring to it as a “staggering” and “extraordinary”

amount of heroin, and observing that “the typical courier doesn’t have two kilos of

heroin.” R4 at 15.

      Further, Alarcon did not prove by a preponderance of the evidence that his

role, examined comparatively, was less significant than others involved. Couriers

are not necessarily minor participants in a conspiracy, and sometimes the amount

of drugs the courier is carrying is the best assessment of that courier’s role. De



                                           9
Varon, 175 F.3d at 943. Moreover, the first prong of the De Varon analysis, which

considers only the direct conduct implicated by the charge, is often dispositive.

Id. at 945. Accordingly, the district court’s decision in this case was in keeping

with precedent and was not clearly erroneous.

                                III. CONCLUSION

      Because Alarcon imported a substantial amount of heroin and he has not

proven that his conduct was less significant than other participants, we conclude

that the district court did not err in refusing to apply the minor role adjustment

under the Sentencing Guidelines. AFFIRMED .




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