              Case: 13-12804    Date Filed: 12/17/2013   Page: 1 of 3


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12804
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:12-cr-20580-KMM-2


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JULIO ORTEGA,

                                                             Defendant-Appellant.

                          ________________________

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

                               (December 17, 2013)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Julio Ortega appeals his concurrent thirty-three-month sentences after being

convicted of one count of conspiracy to encourage and induce an alien to enter the
              Case: 13-12804     Date Filed: 12/17/2013    Page: 2 of 3


United States illegally, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv),

1324(a)(1)(A)(v)(I) and six counts of encouraging and inducing aliens to enter the

United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and 18 U.S.C. § 2. On

appeal, Ortega argues that he should have received a two-level downward

adjustment during his sentencing for his minor role in the offense pursuant to

U.S.S.G. § 3B1.2(b).

      “[W]hether a defendant qualifies for a minor role adjustment under the

Guidelines is a finding of fact that will be reviewed only for clear error.” United

States v. Rodriguez De Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). The

defendant bears the burden of proving his role in the offense by a preponderance of

the evidence. Id. at 934.

      The district court has “considerable discretion” in determining whether

defendant is entitled to a minor role reduction. United States v. Boyd, 291 F.3d

1274, 1277–78 (11th Cir. 2002). In making its decision, “the district court must

measure the defendant’s role against the relevant conduct for which [he] has been

held accountable.” Rodriguez De Varon, 175 F.3d at 940 (emphasis added).

“[W]here the relevant conduct attributed to a defendant is identical to [his] actual

conduct, [he] cannot prove that [he] is entitled to a minor role adjustment simply

by pointing to some broader criminal scheme in which [he] was a minor participant

but for which [he] was not held accountable.” Id. at 941. Additionally, the district


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court may compare the defendant’s culpability “to that of other participants in the

relevant conduct.” Id. at 944. However, the court may only consider other

participants that can be discerned from the evidence and that participated in the

relevant conduct. Id.

      Upon review of the record and consideration of the parties’ briefs, we cannot

say that the district court clearly erred when it determined that Ortega did not play

a minor role in the scheme to encourage and induce aliens to enter the United

States. He actively participated in the efforts to bring several aliens to the United

States by aiding them in boarding the vessel that would transport them. In

addition, he advised them of what to say if the vessel was stopped by authorities

and aided in the vessel’s operation. Furthermore, he did not demonstrate that he

was less culpable than his co-conspirator. Therefore, the district court did not

clearly err in denying Ortega a minor-role adjustment. Accordingly, we affirm the

sentences.

AFFIRMED.




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