                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                    FEBRUARY 19, 2008
                                                    THOMAS K. KAHN
                              No. 07-11766
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                    D. C. Docket No. 06-80138-CR-DTKH

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                   versus

FERNANDO ALVAREZ,
a.k.a. Little Fer,

                                                   Defendant-Appellant.

                        ________________________

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

                             (February 19, 2008)

Before BARKETT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Fernando Alvarez appeals his 120-month sentence, imposed after he pled
guilty to conspiracy to possess with intent to distribute ecstasy, in violation of 21

U.S.C. §§ 846 and 841(a)(1), (b)(1)(C). After review, we affirm.

       During the course of a police investigation focused primarily on Joel

McDermott, a multi-substance trafficker, agents intercepted more than a hundred

calls between McDermott and Alvarez. In these calls, Alvarez discussed quantities

of narcotics being picked up and delivered and monies owed to McDermott.

Agents learned that, beginning in early 2003, McDermott supplied ecstasy pills to

Alvarez for Alvarez to sell. At sentencing, the parties agreed that Alvarez was

responsible for 26,000 ecstasy pills during the conspiracy.

A.     Mitigating-Role Adjustment

        On appeal Alvarez argues that the district court clearly erred in denying him

a mitigating-role adjustment pursuant to U.S.S.G. § 3B1.2(b).1

       A mitigating-role adjustment applies to defendants who are “substantially

less culpable than the average participant.” U.S.S.G. § 3B1.2 cmt. n.3. If the

defendant was a minor participant in the criminal activity, the district court

decreases the offense level 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



       1
         We review for clear error the district court’s determination of whether a defendant
qualifies for a mitigating-role reduction. United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir.
2002).

                                                2
could not be described as minimal.” Id. § 3B1.2 cmt. n.5. If the defendant was a

minimal participant in the criminal activity, the district court decreases the offense

level by four levels. Id. § 3B1.2(a). A minimal participant is one who “plays a

minimal role in concerted activity” and is “plainly among the least culpable of

those involved in the conduct of a group.” Id. § 3B1.2 cmt. n.4. The defendant has

the burden to establish his role in the offense by a preponderance of the evidence.

United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en banc).

      In determining whether a mitigating-role reduction applies, the district court

considers two principles: (1) the defendant’s role in the offense compared to the

relevant conduct attributed to him in calculating his base offense level; and (2) the

defendant’s role compared to that of other participants in the offense. Id. at 940-

45. “[I]n the drug courier context . . . the amount of drugs imported is a material

consideration in assessing a defendant’s role in [his] relevant conduct . . . . [and]

may be dispositive – in and of itself – in the extreme case.” Id. at 943.

Additionally, “when 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, Alvarez’s base offense level of 34 was determined, pursuant to

U.S.S.G. § 2D1.1(c)(3), based on the 26,000 ecstasy pills he agrees he obtained



                                            3
from McDermott to sell.2 Thus, Alvarez was held accountable only for the amount

of drugs with which he was personally involved, not for the larger drug conspiracy

operated by McDermott. Also, we note, as did the district court, that the amount of

ecstasy pills involved was substantial. Because Alvarez’s relevant conduct was

limited to his own activity, the district court did not clearly err in concluding that

Alvarez played an important role in the plan to distribute those ecstasy pills.

       Furthermore, we cannot say that Alvarez was substantially less culpable than

the other identifiable participants in the conspiracy to distribute the ecstasy pills.

At sentencing, Alvarez asserted that he worked for McDermott as a middleman,

obtaining pills from McDermott and taking them to a third person, who would sell

them and give the money to Alvarez to take back to McDermott. The fact that

Alvarez may be less culpable than McDermott is not determinative, given that it is

possible for a conspiracy to have no minor or minimal participants. See id. at 944.

Based on the content of Alvarez’s numerous telephone conversations with

McDermott, the district court found that Alvarez’s involvement was extensive and

that Alvarez was an active participant in the ecstasy conspiracy. The district court


       2
         Alvarez now claims that his actual and relevant conduct were not the same because he
did not actually sell the entire 26,000 pills of ecstasy, but returned some of them to co-
conspirator McDermott. Alvarez pled guilty to conspiracy to possess with intent to distribute
ecstasy, not distribution of ecstasy. Thus, Alvarez need not have actually sold all 26,000 pills
for those pills to be counted as part of his actual conduct. Alvarez does not dispute that he
obtained those pills from McDermott to sell, even if in the end he did not sell all of them.

                                                4
also found that Alvarez had some discretion in setting the price for the ecstasy

pills.

         Alvarez’s emphasis on his limited involvement in McDermott’s larger drug

conspiracy, which involved cocaine as well as ecstasy, is unavailing because

Alvarez was held accountable only for the ecstasy pills he personally handled. See

id. (explaining that the district court should compare the defendant’s role only to

the other identifiable participants in the relevant conduct and that “[t]he conduct of

participants in any larger criminal conspiracy is irrelevant”). Accordingly, the

district court did not clearly err in denying Alvarez’s request for a mitigating-role

reduction.

B.       Criminal History Score

         Alvarez also argues that the district court miscalculated his criminal history

score by assigning two points for his 2001 aggravated battery conviction.3

         Under U.S.S.G. § 4A1.1(b), two points are added for each prior sentence of

imprisonment of at least 60 days not counted in § 4A1.1(a). Further, where a prior

sentence of imprisonment resulted from a revocation of probation, U.S.S.G.

§ 4A1.2(k) applies. U.S.S.G. § 4A1.1 cmt. n.2. Section 4A1.2(k)(1) states, “[i]n



         3
        We review a district court’s factual findings for clear error and its application of the
sentencing guidelines to those facts de novo. United States v. Kinard, 472 F.3d 1294, 1297 n.3
(11th Cir. 2006).

                                                5
the case of a prior revocation of probation. . . add the original term of

imprisonment to any term of imprisonment imposed upon revocation. The

resulting total is used to compute the criminal history points for § 4A1.1(a), (b), or

(c), as applicable.”

      In 2001, Alvarez pled guilty in Florida state court to aggravated battery. He

was sentenced to ten years’ probation, but no jail time. However, in 2004, Alvarez

violated the terms of his probation. As a result, the state court modified his

probation sentence and imposed a 159-day imprisonment sentence, time served.

Alvarez argues that his 159-day sentence, imposed after he violated his probation,

was a “modification” of his probation rather than a revocation, and thus his 159-

day sentence should not be counted in determining the criminal history points for

his aggravated battery offense.

      Alvarez’s argument is foreclosed by United States v. Glover, 154 F.3d 1291,

1294 (11th Cir. 1998). In Glover, the defendant, like Alvarez, violated the terms of

his probation, which resulted in a modification of his probation that included a 90-

day term of imprisonment. Glover, 154 F.3d at 1293. Glover argued that his

sentence resulting from a modification of probation, rather than a revocation, could

not be counted under § 4A1.1(k)(1). Id. at 1293-94. This Court concluded that

“§ 4A1.2(k)(1) contemplates that, in calculating a defendant’s total sentence of



                                           6
imprisonment for a particular offense, the district court will aggregate any term of

imprisonment imposed because of a probation violation with the defendant’s

original sentence of imprisonment, if any, for that offense.” Id. at 1294 (emphasis

added). Furthermore, this Court explained that “‘the finding of a probation

violation coupled with a time-served imprisonment sentence and a resentencing to

probation constitutes a “revocation of probation” under section 4A1.2(k)(1).’” Id.

at 1294 (quoting with approval United States v. Reed, 94 F.3d 341, 345 (7th Cir.

1996)).

      Under Glover, the district court properly considered Alvarez’s 159-day

sentence (imposed after he violated his probation) as a sentence of imprisonment of

at least sixty days under § 4A1.1(b). Thus, the district court properly added two

criminal history points pursuant to U.S.S.G. §§ 4A1.1(b) and 4A1.2(k) for his 2001

aggravated battery conviction.

      AFFIRMED.




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