                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             OCT 30, 2007
                              No. 07-10497                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 06-20561-CR-PCH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

RICHARD MENDEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                             (October 30, 2007)

Before BIRCH, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Richard Mendez appeals the 12-month sentence imposed following his
guilty plea to one count of conspiracy to defraud the government with respect to

claims, 18 U.S.C. § 286, and five counts of theft of public money, 18 U.S.C. § 641.

      Under the direction of a central group of conspirators, who were charged in

a separate indictment, Mendez applied for and received Social Security

Administration (“SSA”) disability benefits to which he was not entitled. Mendez

was one of many individuals who fraudulently obtained benefits while working

with the central conspirators. Mendez purported, at first, to have a disabling

condition of obesity with severe back and knee pain, among other ailments. Later,

Mendez indicated that his disabling condition was severe back and knee pain with

a herniated disk. To support these representations, Mendez relied upon reports

from fictitious physicians and forged medical records. Mendez succeeded in

obtaining $100,010.60 in disability benefits from the United States government.

      On appeal, Mendez argues that the district court erred in denying him a

minor-role reduction. Mendez notes that he had no ownership interest in the

fraudulent venture, did not personally fill out the fraudulent forms, and did not

create the falsified medical documents.

      “We review the district court’s application and interpretation of the

Sentencing Guidelines de novo and its factual findings for clear error.” United

States v. Smith, 480 F.3d 1277, 1278 (11th Cir. 2007), petition for cert. filed, (U.S.



                                           2
June 14, 2007) (No. 06-11901) (citations omitted). The district court’s

determination of a defendant’s role in the offense is a factual determination that we

review for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.

1999) (en banc).

         A defendant who is “plainly among the least culpable of those involved in

the conduct of a group,” and who has a “lack of knowledge or understanding of the

scope and structure of the enterprise and of the activities of others” is entitled to a

four-level reduction for his minimal role. U.S.S.G. § 3B1.2(a), comment. (n.4). A

defendant “who is less culpable than most other participants, but whose role could

not be described as minimal” is entitled to a two-level reduction for his minor role.

U.S.S.G. § 3B1.2(b), comment. (n.5). The defendant bears the burden of proving a

mitigating role in the offense by a preponderance of the evidence. De Varon, 175

F.3d at 939.

         The district court performs a two-prong test in making a mitigating-role

determination. Id. at 940-45. Although De Varon dealt with a defendant charged

with a controlled substance offense, the De Varon analysis is also applicable to

fraud conspiracies. See United States v. Hunter, 323 F.3d 1314, 1323 (11th Cir.

2003).

         “First and foremost, the district court must measure the defendant’s role



                                            3
against the relevant conduct for which [he] has been held accountable.” De Varon,

175 F.3d at 940. “[W]here the relevant conduct attributed to a defendant is

identical to [his] actual conduct, [he] cannot prove that [he] is entitled to a minor

role adjustment simply by pointing to some broader criminal scheme in which [he]

was a minor participant but for which [he] was not held accountable.” Id. at 941.

      In the second prong, the district court may “measure the defendant’s

culpability in comparison to that of other participants in the relevant conduct.” Id.

at 944. A defendant must show more than that he “was somewhat less culpable

than the other discernable participants.” Id. Rather, the defendant must be “less

culpable than most other participants in [his] relevant conduct.”

Id. Additionally, the “conduct of participants in any larger criminal conspiracy is

irrelevant.” Id. Finally, even if a defendant can show that his role was less than

that of other participants, this “may not be dispositive of role in the offense, since it

is possible that none are minor or minimal participants.” Id.

      The district court did not clearly err in determining that Mendez did not play

a minor or minimal role in the benefits fraud conspiracy. Mendez personally

defrauded the SSA of $100,010.60, the total amount he unlawfully received in

disability checks. Mendez’s sentence only held him responsible for the Social

Security disability benefits with which he was personally involved. As such, the



                                            4
district court did not clearly err in determining that he did not have a minor role in

the obtainment of those benefits. See id. at 942-43. In addition, Mendez failed to

show that his role was any less than the average participant or why the “minor

participant” status is applicable when, again, Mendez’s sentence only held him

responsible for the money he defrauded and received from the SSA. See id. at

944. Accordingly, we affirm.

      AFFIRMED.




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