                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 08-14803                   APRIL 29, 2009
                          Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK
                        ________________________

                    D. C. Docket No. 08-20174-CR-MGC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

FLAVIO MARTINEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                               (April 29, 2009)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Flavio Martinez appeals his 46-month sentence imposed for possession of
cocaine with intent to distribute and conspiracy to possess cocaine with intent to

distribute, in violation of 18 U.S.C. §§ 846 and 841(a)(1).

      On appeal, Martinez argues that he should have received a four-level

reduction in offense level for being a minimal participant, rather than the two-level

reduction he received for being a minor participant. He contends that, while others

in the conspiracy negotiated the sale and transported the cocaine, he only provided

a bank account for deposit of travel expenses and traveled with a fellow

conspirator from Oklahoma to Florida to carry out the sale. He further argues that

he was unaware of the full scope and structure of the enterprise.

      As the determination of a defendant’s role in a crime is highly factual, we

review the district court’s decision for clear error. United States v. De Varon, 175

F.3d 930, 937 (11th Cir. 1999) (en banc); see also United States v. Alston, 895 F.2d

1362, 1369 (11th Cir. 1990) (“The requirement in Guidelines § 3B1.2 that a judge

determine whether the defendant was a ‘minor’ or ‘minimal’ participant is a factual

determination and therefore subject to the clearly erroneous standard.”).

Guidelines § 3B1.2 provides that, with regard to a defendant’s role in the offense

and the offense level, “[i]f the defendant was a minimal participant in any criminal

activity, decrease by 4 levels,” and “[i]f the defendant was a minor participant in

any criminal activity, decrease by 2 levels.” U.S. S ENTENCING G UIDELINES



                                           2
M ANUAL § 3B1.2. The district court here applied the latter rule, but Martinez

contends that it should have applied the former. As to the minimal participant

adjustment, the commentary to Guidelines § 3B1.2 explains that

             [i]t is intended to cover defendants who are plainly
             among the least culpable of those involved in the conduct
             of a group. Under this provision, the defendant’s lack of
             knowledge or understanding of the scope and structure of
             the enterprise and of the activities of others is indicative
             of a role as minimal participant. It is intended that the
             downward adjustment for a minimal participant will be
             used infrequently.

U.S. S ENTENCING G UIDELINES M ANUAL § 3B1.2 cmt. n. 4. The determination is

“heavily dependent upon the facts of the particular case” and a court must weigh

the totality of the circumstances and is not bound by the “defendant’s bare

assertion. . . .” Id. at n. 3(C). “The proponent of the downward adjustment . . .

always bears the burden of proving a mitigating role in the offense by a

preponderance of the evidence.” De Varon, 175 F.3d at 939.

      We have set forth two principles to guide courts in making role

determinations. First, the district court must measure the defendant’s actual role

against his relevant conduct, specifically the conduct for which the defendant is

being held accountable at sentencing. Id. at 934. Second, if the record will allow

it, the court may measure the defendant’s conduct against the conduct of the other

participants in the scheme. Id.

                                          3
         Upon review of the record and the arguments presented in the parties’ briefs,

we discern no reversible error. Given that Martinez agreed with the factual

assertions in the PSI and with the Government at his plea hearing, specifically, that

(1) he knew he was participating in the sale of cocaine, (2) he provided assistance

in form of a bank account, and (3) he served as a travel companion to his co-

conspirator from Oklahoma to the site of the sale in Florida, sufficient evidence

exists to show that Martinez participated in the scheme in a meaningful way and

was aware of the scope and structure of the enterprise. Moreover, “[t]he fact that a

defendant’s role may be less than that of other participants engaged in the relevant

conduct may not be dispositive of role in the offense, since it is possible that none

are minor or minimal participants.” De Varon, 175 F.3d at 944 . Therefore, the

district court did not commit clear error by denying him a four-level reduction for

being a minimal participant. Accordingly, we affirm the decision of the district

court.

         AFFIRMED.




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