           Case: 17-13313   Date Filed: 04/24/2018   Page: 1 of 4


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13313
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:17-cr-00061-SDM-JSS-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,
                                 versus


COLON JAIME PIBAQUE PIBAQUE,

                                                         Defendant-Appellant.

                      ________________________

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



                             (April 24, 2018)



Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.
              Case: 17-13313     Date Filed: 04/24/2018   Page: 2 of 4


PER CURIAM:



      In this drug-smuggling case, Colon James Pibaque Pibaque appeals his 135-

month total concurrent sentence. On appeal, Pibaque Pibaque argues that the

district court erroneously denied him a minor role reduction under U.S.S.G. §

3B1.2.

      We review a district court’s determination of a defendant’s role in his

offenses as a finding of fact that will be reviewed only for clear error. United

States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).

      A court may decrease a defendant’s offense level by two levels if a court

finds that the defendant was a “minor participant” in the criminal activity: a

participant who is “less culpable than most other participants in the criminal

activity, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2(b)

& comment. (n.5). The adjustment applies when the defendant proves that he

“play[ed] a part in committing the offense that makes him substantially less

culpable than the average participant in the criminal activity.” U.S.S.G. § 3B1.2,

comment. (n.3(A)). The commentary to § 3B1.2 further instructs that, in deciding

what sort of role reduction the court should apply, the court should consider (1)

“the degree to which the defendant understood the scope and structure of the

criminal activity,” (2) the defendant’s level of involvement in planning or


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organizing the criminal activity, (3) “the degree to which the defendant exercised

decision-making authority or influenced the exercise of decision-making

authority,” (4) “the nature and extent of the defendant’s participation in the

commission of the criminal activity,” and (5) how much “the defendant stood to

benefit from the criminal activity.” Id., comment. (n.3(C)).

      In determining whether a role adjustment is warranted, a district court first

must evaluate the defendant’s role in the relevant conduct for which he has been

held accountable at sentencing and his role compared to that of other participants

in his relevant conduct. De Varon, 175 F.3d at 940. The district court should only

grant a downward adjustment for a minor role in the offense if the defendant can

establish that he played a minor role in the conduct for which he was held

responsible, rather than a minor role in any larger criminal conspiracy. Id. at 944.

      Although a defendant’s status as a drug courier alone does not establish

whether or not he is a minor participant, “when a drug courier’s relevant conduct is

limited to [his] own act of importation [or transportation], 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. Even when a defendant’s role is less

than that of other participants engaged in the conduct, the district court may still

decide the defendant is no minor participant: it may be that none of the participants

are minor. Id. at 944. Furthermore, in the drug courier context, “the amount of


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drugs imported is a material consideration in assessing a defendant’s role in [his]

relevant conduct” and, in some cases, could be dispositive. Id. at 943. But drug

quantity is not the only factor to consider when a assessing a courier’s role. United

States v. Cruickshank, 837 F.3d 1182, 1195 (11th Cir. 2016), cert. denied, 137 S.

Ct. 1435 (2017).

      The district court did not clearly err in determining that Pibaque Pibaque

was not a minor participant in the crime: Pibaque Pibaque was held responsible

only for the cocaine jettisoned from a go-fast vessel and admitted that he was

equally responsible as the other three crew members.

      AFFIRMED.




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