                                                                      [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                          -------------------------------------------U.S. COURT OF APPEALS
                                       No. 05-17076                    ELEVENTH CIRCUIT
                                                                       SEPTEMBER 18, 2006
                                 Non-Argument Calendar
                         -------------------------------------------- THOMAS K. KAHN
                                                                             CLERK

                    D.C. Docket No. 05-00128-CR-T-17TBM

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                           versus

NEISSER VIVAS-QUINONES,

                                                          Defendant-Appellant.


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                    Appeal from the United States District Court
                        for the Middle District of Florida
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                                 (September 18, 2006)

Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Defendant-Appellant Neisser Vivas-Quinones appeals his 135-month

sentence imposed after he pled guilty to (1) possession with intent to distribute
five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction

of the United States, in violation of 46 App. U.S.C. § 1903(a), (g); 18 U.S.C. § 2;

and 21 U.S.C. § 960(b)(1)(B)(ii); and (2) conspiracy to possess with intent to

distribute five kilograms or more of cocaine while aboard a vessel subject to the

jurisdiction of the United States, in violation of 46 App. U.S.C. § 1903(a), (g), and

(j); and 21 U.S.C. § 960(b)(1)(B)(ii). No reversible error has been shown; we

affirm.

      Vivas-Quinones argues that the district court erred in denying him a minor

role reduction pursuant to U.S.S.G. § 3B1.2(b). He asserts that he was less

culpable than the other persons found on the drug smuggling boat (which was

carrying 4,000 kilograms of cocaine) because he did not have an ownership

interest in the smuggled drugs or plan the smuggling operation. Vivas-Quinones

also contends that the small compensation he received for his participation in the

operation indicates that he played a minor role.

      We review for clear error the district court’s determinations about a

defendant’s role in an offense. United States v. Ryan, 289 F.3d 1339, 1348 (11th

Cir. 2002). “The defendant has the burden of establishing his role by a

preponderance of evidence.” Id. Under U.S.S.G. § 3B1.2(b), “[a] defendant

warrants a two-level reduction for playing a minor role in an offense if he is less

                                          2
culpable than most other participants, although his role could not be described as

minimal.” Id.

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

set out two elements that inform the sentencing court’s determination about a

defendant’s role in an offense: (1) the defendant’s role in the relevant conduct for

which he has been held accountable; and (2) the defendant’s role as compared to

that of other participants in his relevant conduct. Id. at 940. About the first

element, De Varon explains that “[o]nly 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 adjustment for minor role in the offense.” Id. at

944. About the second element, De Varon counsels that this relative culpability

inquiry includes “only those participants who were involved in the relevant

conduct attributed to the defendant. The conduct of participants in any larger

criminal conspiracy is irrelevant.” Id. The first element is the more important

and, in many cases, may end the inquiry.1 See id. at 945.

  1
    Vivas-Quinones asserts that our decision in De Varon leads to unjust results because De Varon
fails to consider the underlying acts leading to a drug courier’s role in the offense or to measure
properly the role of a crew member in relation to other participants in the conspiracy. But De Varon,
an en banc decision, remains the guiding law in this Circuit; and we repeatedly have upheld it. See,
e.g., United States v. Alvarez-Coria, 447 F.3d 1340, 1343-44 (11th Cir. 2006). Because we are
bound by our decision in De Varon, we do not reach Vivas-Quinones’s arguments about its

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       The district court committed no clear error in determining that Vivas-

Quinones’s role in the offense was more than minor. About the first element,

Vivas-Quinones’s sentence was based only on the relevant conduct for which he

was held accountable at sentencing: the 4,000 kilograms of cocaine seized from

the boat on which he was found. And in the drug courier context, a large amount

of drugs is an important factor in determining the availability of a minor role

adjustment. Id. at 943 (“[T]he amount of drugs imported is a material

consideration in assessing a defendant’s role in [his] relevant conduct. . . . [W]e

do not foreclose the possibility that amount of drugs may be dispositive . . . . ”).

About the second element, Vivas-Quinones was one of only six crew members on

the drug smuggling boat, which was carrying over four tons of cocaine. Vivas-

Quinones has failed to show that he was “less culpable than most other

participants in [his] relevant conduct.” Id. at 944. We see no clear error in the

district court’s refusal to apply a minor role reduction in this case.

       AFFIRMED.




deficiencies. See United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc)
(“Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though
convinced it is wrong.”); Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e
categorically reject any exception to the prior panel precedent rule based upon a perceived defect in
the prior panel’s reasoning or analysis as it relates to the law in existence at that time.”).

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