                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               March 23, 2006
                              No. 05-14021                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                 D. C. Docket No. 04-00238-CR-T-17-TBM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JORGE EDUARDO MOSQUERA ESTUPIAN,

                                                          Defendant-Appellant.


                        ________________________

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

                              (March 23, 2006)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Jorge Eduardo Mosquera Estupian appeals his 168-month sentence for
conspiracy to possess with intent to distribute and possession with intent to

distribute five or more kilograms of cocaine onboard a vessel subject to United

States jurisdiction, in violation of 46 U.S.C. App. § 1903(a), (g), and (j). On

appeal, Estupian argues that he should have been granted a minor-role reduction,

and that the court should not have enhanced his sentence for his role as the vessel’s

captain.

1. Minor-Role Reduction

      The standard of review for a district court’s determination of whether a

defendant qualifies for a minor-role reduction is clear error. United States v. Boyd,

291 F.3d 1274, 1277 (11th Cir. 2002). The proponent of the reduction always

bears the burden of proving entitlement to the reduction by a preponderance of the

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

banc). The Sentencing Guidelines permit a court to decrease a defendant’s offense

level by two points if it finds that the defendant was a “minor participant” in the

criminal activity. U.S. Sentencing Guidelines Manual § 3B1.2(b). A defendant is

a minor participant if he is “less culpable than most other participants, but his role

could not be described as minimal.” U.S. Sentencing Guidelines Manual § 3B1.2,

cmt. n.5. In determining whether a mitigating-role reduction is warranted, a

district court’s decision “should be informed by two principles discerned from the



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Guidelines: first, the defendant’s role in the relevant conduct for 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. In

looking to relevant conduct, “the district court must assess whether the defendant is

a minor or minimal participant in relation to the relevant conduct attributed to the

defendant in calculating [his] base offense level.” Id. at 941. In comparing a

defendant’s conduct to that of other participants, “the district court should look to

other participants only to the extent that they are identifiable or discernable from

the evidence.” Id. at 944. The De Varon Court noted that, in drug-courier cases,

the amount of drugs is a relevant factor in determining minor-role adjustments and

in some cases is dispositive. Id. at 943.

      Estupian unsuccessfully argues that he had a very minor role simply carrying

out his superior’s orders in an extremely complex narcotics distribution scheme

involving many individuals higher than himself on the chain of command. The 4.6

tons of cocaine found on the vessel weighs heavily against concluding that

Estupian played a minor role. See id. at 943. Other considerations also indicate

that Estupian played at least an average role: (1) Estupian was one of only eight

crew members onboard the vessel when the Coast Guard found it; (2) the vessel’s

manifest identified Estupian as the captain; (3) Estupian was aware that the vessel



                                            3
was transporting cocaine and participated actively in either preparing the hidden

compartment for the cocaine or loading the cocaine; and (4) Estupian, at the very

least, captained the vessel on its journey to rendezvous with the Colombians in

order to obtain the cocaine. For these reasons, Estupian was, at the very least, an

average participant in the criminal act, and, accordingly, we affirm as to this issue.

2. Captain Enhancement

      Estupian also argues that there was insufficient evidence for the district court

to conclude that he was the captain of the vessel for purposes of a U.S. Sentencing

Guidelines Manual § 2D1.1(b)(2)(B) enhancement. Specifically, Estupian argues

that the only evidence in support of that finding was: (1) the vessel manifest

identifying him as the licensed captain; and (2) his testimony that he was the

captain, which, he argues, should not have been considered because he stated,

during the plea colloquy, that he had been pressured to come forward as the

captain. With regard to the vessel manifest, Estupian argues that our precedent

precludes a § 2D1.1(b)(2)(B) enhancement based on title alone when he was not

acting as the captain.

      Regarding the enhancement under § 2D1.1(b)(2)(B), we review a district

court’s finding of fact for clear error and its application of the guidelines de novo.

United States v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003). A defendant’s



                                           4
conduct warrants a two-level increase if “the defendant acted as a . . . captain . . . or

any other operation officer aboard any . . . vessel carrying a controlled substance . .

. .” U.S. Sentencing Guidelines Manual § 2D1.1(b)(2)(B). The guideline does not

define the term “captain.” However, in Rendon, we declined to adopt a rigid

definition of “captain,” and declined to create one. Rendon, 354 F.3d at 1329. We

then adopted the reasoning of a First Circuit case which rejected a defendant’s

argument that, because the substantive crime was not completed, he could not

qualify for a § 2D1.1(b)(2)(B) enhancement. Id. at 1330. We noted that the

§ 2D1.1(b)(2)(B) enhancement “addresses those who facilitate a drug smuggling

operation by filling a critical position without which the operation likely would

fail.” Id. at 1334.

      Even if Estupian abdicated his role as captain to one of the Colombians with

whom he rendezvoused, because Estupian admittedly captained the vessel during

the course of the conspiracy and guided the vessel to its rendezvous point to pick

up the cocaine, the district court did not err in applying the § 2D1.1(b)(2)(B)

enhancement. Upon review of the record, and consideration of the briefs of the

parties, we find no reversible error.

      AFFIRMED.




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