                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 10-10635                 ELEVENTH CIRCUIT
                                                                AUGUST 30, 2010
                            Non-Argument Calendar
                          ________________________                JOHN LEY
                                                                   CLERK

                     D.C. Docket No. 1:09-cr-20752-MGC-1

UNITED STATES OF AMERICA,
                                                         Plaintiff-Appellee,

                                      versus

JUAN CARLOS PEREYRA DIAZ,


                                                         Defendant-Appellant.

                         __________________________

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

                                (August 30, 2010)

Before BLACK, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

      Juan Carlos Pereyra Diaz appeals his 37-month sentence, which he received

after pleading guilty to importing 500 grams or more of cocaine, in violation of 21
U.S.C. § 952(a). On appeal, Pereyra asserts that the district court erroneously

denied him a two-level minor-role sentencing reduction under the United States

Sentencing Guidelines (U.S.S.G.) § 3B1.2(b). Specifically, Pereyra contends that

the district court failed to properly apply the test for minor-role reductions set

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

      The Guidelines permit a two-level reduction in the base offense level for a

defendant who played a minor role in an offense. U.S.S.G. § 3B1.2(b). The

defendant has the burden of establishing his entitlement to the reduction by a

preponderance of the evidence. De Varon, 175 F.3d at 939. Whether a defendant

is entitled to a minor-role reduction is “fundamentally [a] factual determination”

that we review for clear error. Id. at 934, 938.

      In determining whether a defendant is entitled to a minor role reduction, the

district court engages in a two-part inquiry. See id. at 945. First, the district court

must measure the defendant’s actions against “the conduct for which [he] has been

held accountable under U.S.S.G. § 1B1.3.” Id. at 934. This inquiry will often be

dispositive. Id. at 945. If a defendant’s actual conduct is identical to the relevant

conduct considered for sentencing purposes, the defendant cannot prove that an

adjustment is appropriate “simply by pointing to some broader criminal scheme in




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

Id. at 941.

      As to the first step in the analysis, the district court in this case found “this

is not a situation where [Pereyra] is a smaller part of a larger group. He was the

criminal activity.” (emphasis added.) Although Pereyra alleges that he was part of

a larger scheme, he was held accountable only for importing cocaine, not for any

broader conspiracy. As to his actual conduct, Pereyra admitted that he did, in fact,

import 1,988 grams of cocaine into the United States. The district court, therefore,

did not clearly err in finding that Pereyra’s actual conduct was not minor, relative

to the conduct for which he was held accountable. This determination was

dispositive, and the court did not need to address the second prong of the test. See

De Varon, 175 F.3d at 945.

      The district court may advance to the second prong of the analysis only

“where the record evidence is sufficient.” De Varon, 175 F.3d at 934. If the record

allows, the court may “measure the defendant’s conduct against that of other

participants in the criminal scheme attributed to the defendant.” Id. Not all

participants are relevant, and two principles guide the district court in evaluating

proposed comparators: (1) “the district court should look to other participants only

to the extent that they are identifiable or discernable from the evidence”; and (2)


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“the district court may consider 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. at 944. Again, it is the defendant’s

burden to provide a record sufficient to demonstrate relevant discernable

comparators. See id. at 934. Pereyra failed to provide sufficient evidence of such

comparators. Were the district court to have considered the second prong of the

minor-role analysis, Pereyra’s vague descriptions of the shadowy figures with

whom he associated during the drug transaction would have been insufficient to

meet his burden.

      In the drug courier context, we have set forth a non-exhaustive list of factors

that the district court may consider in making the ultimate determination as to

whether the defendant is entitled to a minor role reduction. Id. at 945. These

factors are examined during the district court’s two-step inquiry. Id. The factors

include the amount of drugs he is carrying, their fair market value, the amount of

money to be paid to the courier, any equity interest the courier might have in the

drugs, the courier’s role in planning the criminal scheme, and the courier’s role in

the distribution. Id. Although the district court did not expressly address each of

these factors in this case,“a district court is not required to make any specific

findings other than the ultimate determinations of the defendant’s role in the


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offense.” Id. at 940. In the final analysis, the decision of whether a drug courier

qualifies for a minor-role reduction “falls within the sound discretion of the trial

court.” Id. at 945. Pereyra has failed to demonstrate that the court committed

clear error in its ultimate determination that he was not entitled to a minor-role

sentencing reduction. Accordingly, the sentence is

      AFFIRMED.




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