                          NONPRECEDENTIAL DISPOSITION
                            To be cited only in accordance with
                                    Fed. R. App. P. 32.1



              United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604

                                    Argued March 2, 2010
                                    Decided September 23, 2010

                                            Before

                             DIANE P. WOOD, Circuit Judge

                             ANN CLAIRE WILLIAMS, Circuit Judge

                             DAVID F. HAMILTON, Circuit Judge

No. 09-2027
                                                     Appeal from the United States District
UNITED STATES OF AMERICA,                            Court for the Northern District of Illinois,
     Plaintiff-Appellee,                             Eastern Division.

       v.                                            No. 07 CR 682-3

ROBERTO TOSCANO,                                     John W. Darrah,
     Defendant-Appellant.                            Judge.

                                          ORDER

       Roberto Toscano pleaded guilty to conspiring to possess cocaine with intent to

distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. He qualified for the safety-valve

provision and was sentenced below the statutory minimum to 108 months’ imprisonment. On

appeal he challenges the denial of a mitigating role reduction in his guidelines offense level,

as well as the reasonableness of his sentence. We affirm the sentence.
No. 09-2027                                                                               Page 2

       Toscano was snared during an investigation of Pedro Victoria, a suspected high-level

drug dealer. Toscano admitted in his plea agreement that Victoria, one of his codefendants in

this case, called him on the morning of the arrest to arrange for the transfer of 80 kilograms of

cocaine that had been stored overnight in Toscano’s sport utility vehicle (“SUV”). Victoria was

followed by agents from the Drug Enforcement Administration as he drove to Toscano’s house.

Victoria was accompanied by codefendants Ruben Villarreal and Vincent Calero, who were

driving Villarreal’s vehicle. The plan was for Villarreal and Victoria to pick up the cocaine and

transfer it to Villarreal’s vehicle while Calero acted as the lookout. They would then transport

the cocaine to an unidentified dealer who had bought it from Victoria. When they arrived at

Toscano’s residence, Calero sat in Villarreal’s vehicle while Villarreal, Victoria, and Toscano

began unloading the drugs from Toscano’s SUV. The agents arrested them in the middle of the

transfer, and all four men later pleaded guilty to participating in a drug conspiracy.

       At sentencing, Toscano sought a mitigating role reduction under U.S.S.G. § 3B1.2. He

argued that he was substantially less culpable than the other participants because he did not

know in advance how much cocaine Victoria would give him and he had no role in the

planning or negotiation of the anticipated sale. Toscano asserted that he and Victoria had a

prior business relationship (he had done drywall work for Victoria’s construction company)

which turned illegal when Victoria asked him the night before the arrest if he would collect

money for him and deliver a small amount of drugs. Apparently, Toscano agreed to store the

drugs at his house and told Victoria to put the drugs in his vehicle if he was not at home.
No. 09-2027                                                                              Page 3

Toscano claimed that once he saw the large amount of cocaine in his SUV, he called Victoria

and said that he would not deliver such a huge quantity. According to Toscano, this refusal

prompted Victoria to come remove the drugs the following morning from Toscano’s SUV,

whereupon they were arrested.

       The district court found that Toscano was not substantially less culpable than his co-

conspirators, which precluded the application of the mitigating role reduction. The court noted

that there was a discrepancy between Toscano’s testimony and the presentence report. At the

hearing, Toscano indicated that he called Victoria to tell him that he would not be able to

deliver such a large amount of drugs, but the PSR stated that it was Victoria who initiated the

phone call that morning to tell Toscano that he would be picking up the drugs. In addition, the

court contrasted Toscano’s involvement with that of Calero, who had received a three-level

minor role reduction because he only functioned as the lookout and did not assist with the

unloading of the drugs. The district court found that Toscano, on the other hand, allowed

Victoria to store drugs overnight in his SUV, and after seeing such a large quantity of cocaine,

“didn’t walk away or anything,” but instead helped Victoria and Villarreal transfer the drugs

to Villarreal’s car for further distribution.

       The court proceeded to analyze the 18 U.S.C. § 3553(a) factors, and after reviewing

mitigating evidence of Toscano’s difficult childhood and his positive letters of support, the

court sentenced Toscano to 108 months’ imprisonment. The district court stated that the
No. 09-2027                                                                                 Page 4

sentence was necessary to promote respect for the law, to deter others from distributing drugs,

and to reflect the large amount of cocaine involved.

       On appeal, Toscano focuses on the district court’s denial of a mitigating role reduction,

arguing that the court did not fully consider the circumstances surrounding the offense when

evaluating the extent of his participation. He asserts that the district court overlooked his lack

of involvement in the cocaine acquisition, the eventual sale, and the “extensive” conspiracy

between Victoria and the other dealer.

       Toscano bore the burden in the district court of proving that he was “substantially less

culpable than the average participant” and therefore entitled to a mitigating role reduction.

U.S.S.G. § 3B1.2 cmt. n.3(A); see United States v. Sandoval-Vasquez, 435 F.3d 739, 745 (7th Cir.

2006). Section 3B1.2 of the sentencing guidelines provides that a defendant’s offense level may

be decreased by two to four levels if he played a mitigating role in the offense. If the defendant

was a “minimal participant,” he should receive a four-level decrease, U.S.S.G. § 3B1.2(a); and

if he was a “minor participant,” a two-level decrease, id. § 3B1.2(a).1 “The difference between

minor and minimal depends on how the sentencing judge views the guilty conduct of the other

participants. The former requires ‘less culpable than most’ while the latter asks for ‘plainly

among the least culpable.’” United States v. Hunte, 196 F.3d 687, 694 (7th Cir. 1999). A court

determines the extent of a defendant’s role based on all of his relevant conduct, not just the acts




       1
       In cases in which the defendant’s role “fall[s] between (a) and (b),” the offense level
may be decreased by three levels. U.S.S.G. § 3B1.2.
No. 09-2027                                                                                   Page 5

cited in the count of conviction. U.S.S.G. ch. 3, pt. B, introductory cmt.; United States v. Blaylock,

413 F.3d 616, 618 (7th Cir. 2005). We review the denial of a mitigating role reduction for clear

error. United States v. Rodriguez-Cardenas, 362 F.3d 958, 959 (7th Cir. 2004).

       Here, the district court did not clearly err by denying Toscano a mitigating role

reduction. Toscano failed to show that he was substantially less culpable than the average

participant in the crime, and the levels of culpability attributable to Victoria and Calero (as the

conspiracy’s leader and minor participant, respectively) are not valid bases for comparison.

A defendant’s culpability depends on his participation relative to the average participant in his

conspiracy, not to that of the conspiracy’s leader or to that of the average participant in some

other hypothetical conspiracy. See United States v. Lopez, 545 F.3d 515, 517 (7th Cir. 2008); United

States v. Gallardo, 497 F.3d 727, 741 (7th Cir. 2007); United States v. Almanza, 225 F.3d 845, 847

(7th Cir. 2000). Under the circumstances of this offense, it appears that Villarreal’s role

(assisting with the removal of the drugs from Toscano’s SUV and placing them into his own

vehicle) is most comparable to Toscano’s; notably, like Toscano, Villarreal did not receive a

mitigating role reduction.

       Even though Toscano did not act as a manager of the conspiracy, the district court

properly determined that Toscano’s role was “essential” to the distribution process, which we

have held to be a valid basis for the denial of a mitigating role reduction. See United States v.

Gonzalez, 534 F.3d 613, 616 (7th Cir. 2008) (“[W]here each person was an ‘essential component’

in the conspiracy, the fact that other members of the conspiracy were more involved does not
No. 09-2027                                                                                Page 6

entitle a defendant to a reduction in the offense level.”). Therefore, the court did not err in

finding the storage and unloading sufficient to deny Toscano a mitigating role reduction.

       Toscano also challenges the reasonableness of his sentence. He contends that the district

court inappropriately overemphasized the need for deterrence and that the 108-month sentence

was greater than necessary to fulfill the purposes set forth in 18 U.S.C. § 3553(a). In an attempt

to justify a lower sentence, Toscano cites his steady employment history, his commitment to

his family, his lack of any significant criminal history, and his limited role in the offense.

Simply put, he asks this court for “leniency” in applying the statutory sentencing factors.

       We review the reasonableness of a district court’s chosen sentence for abuse of

discretion. United States v. Poetz, 582 F.3d 835, 837 (7th Cir. 2009). Because Toscano’s sentence

falls within a properly calculated guidelines range, we apply a presumption of reasonableness

that Toscano can rebut only by showing that the district court did not properly consider his

asserted mitigating factors. United States v. Singleton, 588 F.3d 497, 500-01 (7th Cir. 2009). The

record shows that the district court did consider Toscano’s mitigating evidence, as evidenced

by the court’s acknowledgment that Toscano was a “good man,” unlikely to commit another

criminal offense, and that he had an extremely difficult childhood in Mexico. After noting that

those factors were “very compelling,” the court determined that on balance, a substantial

sentence was warranted in light of the seriousness of the defendant’s offense. Contrary to

Toscano’s assertion that the court relied too heavily on the deterrence factor, the court’s

statements illustrate that the sentencing judge did consider all of the § 3553(a) factors and
No. 09-2027                                                                                 Page 7

imposed a reasonable sentence in conformity therewith.2 As “it is not our province to second

guess the district court’s sentencing rationale,” United States v. Blue, 453 F.3d 948, 954 (7th Cir.

2006), we decline to do so here.

                                                                                      AFFIRMED.




       2
         That the district court placed significant weight on the guidelines does not indicate that
the court treated them as “presumptively reasonable.” See United States v. Dale, 498 F.3d 604,
611 (7th Cir. 2007) (“Of course, the district court can place significant weight on the guidelines
without rendering the resulting sentence unreasonable. The sentence imposed must be
reasonable with respect to the factors enumerated in § 3553(a), and among those factors is the
advisory guidelines.”).
