                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              October 18, 2006
                             No. 06-10842                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 05-00332-CR-T-24-MSS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MARCOS VALENZELA,

                                                         Defendant-Appellant.


                       ________________________

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

                            (October 18, 2006)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Marcos Valenzela appeals his concurrent 144-month sentences for

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 U.S.C. app. § 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii), and possession

with intent to distribute 5 kilograms or more of cocaine, in violation of 46 U.S.C.

app. § 1903(a), (g), 21 U.S.C. § 960(b)(1)(B)(ii), and 18 U.S.C. § 2. On appeal, he

argues that the district court erred by denying him a minor-role reduction and by

imposing an unreasonable sentence. For the reasons set forth more fully below, we

affirm.

      Valenzela pled guilty to both of the above-mentioned charges. According to

the Presentence Investigation Report (“PSI”), on August 3, 2005, the United States

Coast Guard, using warning shots and disabling fire, intercepted and boarded a go-

fast vessel that contained over 525 kilograms of cocaine. Following his arrest,

Valenzela, who claimed Mexican citizenship, stated that he had traveled to Belize

on three occasions to transport cocaine from Colombia, and that he transported

cocaine for the money. He was hired to “protect the cocaine” on the trips and was

paid $10,000 in U.S. currency to protect the cocaine on the August 2005 trip.

      In preparing the PSI, the probation officer held Valenzela accountable for

525 kilograms of cocaine and assigned a total offense level of 33 and a criminal



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history category of I, which produced a Guideline imprisonment range of 135-168

months’ imprisonment. No adjustment was made for Valenzela’s role in the

offense. Valenzela moved for a “downward departure” on the ground that he acted

only as a minor participant.

      At sentencing, Valenzela testified that he was not paid anything for the trip

during which he was arrested, but was paid about $2,000 in expense money to

travel from Mexico to Colombia. He had also made two previous trips. He was

paid $20,000 for the first trip. He tried to avoid the second trip by stabbing himself

in the ribs with a knife, but went after they called him and “practically forced” him

to go. Valenzela explained that he did not want to go on the third trip, but was told

that, after that trip, he would be paid for that trip and the second trip. Valenzela

also stated that these people, at one point, hunted him down at his mother’s

residence. Valenzela explained that he had “practically nothing” to do on the boat.

His responsibility was to safeguard the drugs, which required him just to “be there”

until they arrived at their destination. He did not load the boat or participate in any

sailing activities. Valenzela explained that he was paid $20,000 for the first trip

and received $10,000 for the second trip, but was told that he would be paid more.

He was not told how much he would be paid for the second or third trips, but he

expected to receive $20,000 per trip.



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      Valenzela, through counsel, argued that his duties were very simple and,

recognizing that he “scores out to a range of 135-plus months,” asked the district

court to depart to a level of 108 months’ imprisonment and to consider (1) its

lenient treatment of a codefendant who seemed to have a very minor role on the

boat, and (2) evidence of Valenzela’s attempt to avoid making a trip and the

pressure put on him to go. The district court, noting that Valenzela’s motion was

framed in terms of a departure, denied the motion. The court noted that the amount

of money Valenzela received or expected to receive – $20,000 per trip and $2,000

in expenses – and concluded that Valenzela’s testimony that he really did not do

anything was disingenuous. The district court adopted the Guideline calculations

and facts in the PSI. After considering the advisory Guidelines and 18 U.S.C.

§ 3553, the district court imposed a 144-month sentence, stating that it was

appropriate considering Valenzela’s role in the offense and the fact that it was not

the first time that Valenzela participated in such a venture.

      Based primarily upon his lack of duties on the boat, as well as the fact that

he was not paid for the third trip and had been subject to duress, Valenzela first

argues that the district court clearly erred in not granting a minor-role adjustment.

He contends that, in contravention of United States v. De Varon, 175 F.3d 930

(11th Cir. 1999) (en banc), the district court failed to consider that he was not paid



                                           4
for the trip, had no equity interest in the drugs, and had no role in planning the

criminal scheme.

       We review the district court’s interpretation of the Guidelines de novo and

its factual findings for clear error. United States v. Ellis, 419 F.3d 1189, 1192

(11th Cir. 2005). “[A] district court’s determination of a defendant’s role in the

offense is a finding of fact to be reviewed only for clear error.” De Varon, 175

F.3d at 937.1 “The defendant bears the burden of proving his minor role by a

preponderance of the evidence.” United States v. Boyd, 291 F.3d 1274, 1277 (11th

Cir. 2002). Under U.S.S.G. § 3B1.2(b), a defendant qualifies for a two-level

reduction to his offense level if he was a minor participant in the offense. U.S.S.G.

§ 3B1.2(b). The Guidelines further define a minor participant as one “who is less

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

minimal.” Id., comment. (n.5).

       As we clarified in De Varon, when determining whether a minor-role

reduction is warranted, a district court should consider (1) whether the defendant

played a minor role in relation to the relevant conduct for which he was held



       1
          Although the government argues that our review should be for plain error because
Valenzela never requested a minor-role adjustment nor questioned the district court’s calculation
of his offense level, we decline to decide the issue as Valenzela cannot show clear error. Cf.
United States v. Nyhuis, 8 F.3d 731, 744 (11th Cir. 1993) (declining to decide if defendant
waived issue by failing to raise a sufficient objection because her argument was without merit).

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accountable and (2) where appropriate, the culpability of the defendant as

measured against that of other participants in the relevant conduct. De Varon, 175

F.3d at 940, 944. “[W]hen a drug courier’s relevant conduct is limited to [his] own

act of importation, 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.

       Here, it cannot be said that the district court clearly erred by denying

Valenzela a minor-role reduction. Applying the first part of De Varon, the relevant

conduct for which he was held accountable was the 525 kilograms of cocaine

aboard the go-fast boat. In addition, Valenzela stated that he was hired to protect

or safeguard the cocaine. In light of his testimony that he had earned $20,000 on

his first trip and expected to make the same amount on each of his subsequent two

trips, the district court did not clearly err in rejecting Valenzela’s assertions as to

his minimal role. With respect to the second part of the De Varon analysis, the

only other participants discernable from the evidence and involved in the relevant

conduct were the three other crew members. The PSI identified Federman Madera-

Lopez as the captain of the vessel. Valenzela offered no testimony as to Rafael

Puertas-Moncada and Edin Alfonso Martinez-Espita’s duties on the boat.

Furthermore, Valenzela expected to be paid over twice as much as Martinez-



                                            6
Espita, a sea taxi driver, was offered. Furthermore, the district court “is not

required to make any specific findings other than the ultimate determination of the

defendant’s role in the offense,” De Varon, 175 F.3d at 940. Even in the absence

of an equity interest or a planning role, given the factors considered by the court,

the district court’s refusal to grant a role reduction was not clearly erroneous.

       Based on his testimony that he was not paid for the trip on which he was

arrested, had attempted to avoid a trip in the past but was “practically forced” to

go, and had limited duties on the boat, Valenzela next argues that his sentence was

unreasonable in light of his history and characteristics and other § 3553(a) factors.

Valenzela further argues that his sentence was unreasonable because:

(1) codefendant Puertas-Moncada was sentenced to 70 months’ imprisonment;

(2) it did not provide just punishment for the offense; and (3) his requested 108-

month sentence was sufficient to comply with the purpose of § 3553(a).

       We review the final sentence imposed by the district court for

reasonableness.2 United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.

2005). The district court’s imposition of a sentence is guided by the Guideline

calculations and the factors outlined in 18 U.S.C. § 3553(a). United States v.


       2
         The government again argues that our review is for plain error because Valenzela failed
to object to the reasonableness of his sentence or the court’s consideration of the § 3553(a)
factors. As Valenzela cannot show that his sentence was unreasonable, we decline to decide this
issue.

                                               7
Talley, 431 F.3d 784, 786 (11th Cir. 2005). The § 3553(a) factors take into

account:

       (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to
      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Id. “[T]here is a range of reasonable sentences from which the district court may

choose.” Id. at 788. While a sentence within the advisory Guidelines range is not,

per se, a reasonable sentence, we ordinarily expect such a sentence to be

reasonable. Id. at 787-88. The burden of establishing that the sentence is

unreasonable in light of the record and the § 3553(a) factors lies with the party

challenging the sentence. Id. at 788.

      Here, Valenzela cannot meet his burden. Given his past participation in drug

transportation and his role in the offense safeguarding the drugs, we hold that

Valenzela’s 144-month sentence, towards the low end of the advisory Guideline

range, was not unreasonable. We note that, although he testified that he was not

paid for the trip, Valenzela testified that he expected to be paid $20,000. Although

Valenzela testified that, at least at one point, he tried to avoid a trip but was

                                            8
pressured to go, in a post-arrest statement, he indicated that he transported cocaine

for the money. Moreover as to this final trip, Valenzela’s testimony suggests that,

although he did not want to go, he went for the money. Finally, the district court

rejected Valenzela’s testimony regarding his minimal role aboard the boat.

      In light of the foregoing, the district court is

      AFFIRMED.




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