                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-11660                ELEVENTH CIRCUIT
                         Non-Argument Calendar            DECEMBER 16, 2010
                       ________________________               JOHN LEY
                                                               CLERK
                  D.C. Docket No. 0:09-cr-60245-WPD-7

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

JORGE HERRERA,

                                                     Defendant-Appellant.

                      ________________________

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

                           (December 16, 2010)

Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:
       Jorge Herrera appeals his 27-month sentence for robbery, in violation of the

Hobbs Act, 18 U.S.C. § 1951(a).1 He argues that the district court erred in

denying his request for a minor-role reduction to his Sentencing Guidelines

offense level. Upon review, we affirm.

                                                I.

       In 2009, the Broward County Sheriff’s Office learned from a confidential

informant (“CI”) that two men, Amaury Hernandez and Lazaro Riveras, were the

leaders of a violent group of individuals conducting home-invasion robberies and

kidnapings. The CI set up a meeting with Hernandez and an undercover officer,

who told Hernandez that he worked for the Drug Trafficking Organization

(“DTO”) and sought to rob 50 kilograms of cocaine from its stash house.

Hernandez told the officer that his crew could conduct the robbery and collect the

cocaine, and he agreed to give the officer ten kilograms of the cocaine. Hernandez

described how they would tie up the stash house’s guards when they entered the

house, and added that they would tie up the officer, as well, in order to conceal his

involvement in the scheme.

       In subsequent meetings with the officer and the CI, Hernandez and Riveras


       1
          Herrera’s consecutive, 60-month sentence for use or carrying of a firearm during and in
relation to a drug trafficking crime and a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A), 2, is not under dispute.

                                                2
expressed their willingness and ability to commit the robbery. Riveras stated that

he and three other individuals would dress as police officers and assault the stash

house. They planned to steal the cocaine and kidnap the guards in order to secure

ransom money for their release. They added that, when the officer learned the

address of the stash house, they would conduct reconnaissance using multiple cars.

      On the day of the planned robbery, Riveras and two other men in a

Chevrolet Impala followed the CI and Hernandez to a meeting with the officer at

an undercover facility. A Ford F-350 and a Hummer H2 followed them partway to

the facility, before diverting to a pharmacy. While Hernandez, the CI, and the

officer met, law enforcement arrested the men in the Impala. Riveras had five 12-

gauge shotgun shells on his person, and a search of the Impala revealed plastic ties

for handcuffs, three hats, a pair of gloves, and a long-sleeved black shirt. In the

meeting, Hernandez told the officer that guns for the robbery were in the Hummer.

Hernandez was then arrested, as well.

      The F-350 was stopped and its occupants, including Herrera, the driver,

were arrested. A search of the F-350 revealed a Drug Enforcement Administration

(“DEA”) hat, packaging for two security-guard badges, a serrated 8.5-inch bladed

knife, and the key to the Hummer. The Hummer was located at the pharmacy and

was found to contain a 12-gauge shotgun, a loaded .380-caliber pistol, 2 security-

                                          3
guard badges, a DEA hat, and a Federal Bureau of Investigation (“FBI”) shirt.

Hernandez had told the CI that he had real bullets, he intended to shoot and kill

the stash house’s guards if they resisted, and the CI should not worry because he

and other members of the crew had conducted such robberies many times.

      A federal grand jury indicted Herrera and his codefendants on multiple

charges. Herrera pled guilty to Count 1, conspiracy to commit robbery by taking

cocaine by force from an individual he believed to be engaged in narcotics

trafficking, in violation of the Hobbs Act, and Count 5, use and carrying of a

firearm during and in relation to a crime of violence and a drug trafficking crime.

      As to Count 1, Herrera had a total offense level of 18 and a criminal history

category of I, resulting in a guideline sentencing range of 27-33 months’

imprisonment. At the sentencing hearing, Herrera argued for a minor-role

adjustment. He stated that he was not involved in any of the meetings with the

undercover officer or the CI, and he had been recruited only two or three days

before by Riveras, his stepson. He was never armed and had pled to Count 5 only

as an aider and abettor. He contended that his role was to drive the F-350 to the

scene, enter the house after the occupants had been subdued, and help load the

cocaine. He asserted that he had very limited exposure to the offense and had no

authority to plan it, select the crew, or negotiate his payment.

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      The government responded that, according to Hernandez’s testimony at a

codefendant’s trial, Herrera and two of the other co-conspirators were going to be

the first ones to enter the stash house because they were of the largest physical

stature. They would be followed by two armed individuals. All five men would

be dressed in black, and Herrera and the other two unarmed men would be wearing

the police gear. The armed men would aim their guns at the guards while the

guards were bound with plastic ties. Only Hernandez and one other defendant

would remain outside.

      Herrera acknowledged that he had purchased and worn black clothes at

Riveras’s request. Nevertheless, counsel indicated his doubt that Herrera would

have gone into the house to accost the guards, as he was 54 years old with severe

physical infirmities.

      The court stated that the defendant who remained outside with Hernandez

might have had an argument for a minor role, but it did not see Herrera’s role as

minor. Herrera, like others, was going to go into the house, dressed in black,

while some or all of them pretended to be law enforcement officers. All of the

individuals who were going to enter the house played an integral part in the

conspiracy. The court found that the fact that others may have played larger roles

did not necessarily mean that Herrera had played a minor role. After hearing

                                          5
argument as to the 18 U.S.C. § 3553(a) factors, the court sentenced Herrera to 27

months’ imprisonment for Count 1 and 60 months’ imprisonment for Count 5, to

be served consecutively.

                                         II.

      A district court must begin the sentencing process by correctly calculating

the applicable guideline range. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct.

586, 596, 169 L.Ed.2d 445 (2007). Likewise, we begin our review of a sentence

for reasonableness by ensuring that the district court did not commit any

significant procedural error, such as improperly calculating the guideline range.

Id. at 51, 128 S.Ct. at 597. A district court’s determination of the defendant’s role

in the offense is reviewed for clear error. United States v. De Varon, 175 F.3d

930, 937 (11th Cir. 1999). The party seeking the adjustment bears the burden of

establishing its applicability by a preponderance of the evidence. Id. at 939.

      “If the defendant was a minor participant in any criminal activity,” his

offense level is to be reduced by two levels. U.S.S.G. § 3B1.2(b). A minor

participant is one “who is less culpable than most other participants, but whose

role could not be described as minimal.” U.S.S.G. § 3B1.2, comment. (n.5). In

determining whether a minor-role adjustment applies, the district court should

consider two principles: “first, the defendant’s role in the relevant conduct for

                                          6
which [he] has been held accountable at sentencing, and, second, [his] role as

compared to that of other participants in [his] relevant conduct.” De Varon, 175

F.3d at 940.

      As to the first prong of the De Varon analysis, the court must assess the

defendant’s role in relation to all of the relevant conduct that was attributed to him

under U.S.S.G. § 1B1.3, as the broad scope of that section may cause some

defendants to be held accountable for conduct that is much broader than their

specific acts. De Varon, 175 F.3d at 941. “Only 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. As to the second prong of the analysis, the court should compare the

defendant to the other participants only to the extent that the others (1) “are

identifiable or discernable from the evidence,” and (2) “were involved in the

relevant conduct attributed to the defendant.” Id. Relative culpability might not

be dispositive, since it is possible that none of the participants had minor or

minimal roles. Id. Thus, the defendant must show that he “was less culpable than

most other participants in [his] relevant conduct.” Id.

      Here, Herrera was held accountable only for his own conduct, not for any

                                          7
additional conduct that was broadly relevant under § 1B1.3. The court found that

Herrera, like four of the other six participants, purchased black clothing to wear as

he entered the stash house, and he drove one of the vehicles to the stash house.

His role in the planned robbery was to enter the house as one of the five

individuals pretending to be law enforcement officers, and to help with removing

the cocaine from the house. The two remaining conspirators were to remain

outside the stash house while Herrera and the others conducted the raid.

Counsel’s argument that Herrera’s physical infirmities made him unlikely to

personally kidnap or subdue the guards did not, by itself, establish that he played a

minor part in the scheme or that he was less culpable of the robbery than most of

the other participants. See De Varon, 175 F.3d at 944. Therefore, the district

court’s denial of the minor-role reduction was not clearly erroneous. See id. at

937.

       For the foregoing reasons, we affirm Herrera’s sentence.

       AFFIRMED.




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