                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 07-10579                    March 25, 2008
                          Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                        ________________________

                    D. C. Docket No. 06-80086-CR-DTKH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

DEWEESE BURROWS,

                                                          Defendant-Appellant.


                        ________________________

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

                              (March 25, 2008)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     A Southern District of Florida jury found Deweese Burrows guilty of both
counts of a two-count indictment: Count 1, attempting to import 500 grams or

more of cocaine into the United States on or about November 13, 2004, and Count

2, conspiracy to commit the Count 1 substantive offense, all in violation of 21

U.S.C. §§ 952(a), 960(a)(1), (b)(2), and 963. The district court sentenced him to

concurrent prison terms of 84 months, and he now appeals both his convictions and

his sentences.

      Burrows appeals his convictions on the ground that the Government’s proof

failed to establish the elements of the charged offenses. To convict Burrows of the

Count 1 attempt offense, the Government had to prove beyond a reasonable doubt

that he: (1) acted with the type of culpability required for the commission of the

crime; and (2) engaged in conduct that constituted a substantial step toward the

commission of the crime, under circumstances strongly corroborative of the

required culpability. United States v. Forbrich, 758 F.2d 555, 557 (11th Cir.

1985). To convict Burrows of conspiracy, the Government had to prove “(1) that a

conspiracy existed, (2) that [Burrows] knew of it, and (3) that the [Burrows], with

knowledge, voluntarily joined it.” United States v. Perez-Tosta, 36 F.3d 1552,

1557 (11th Cir. 1994). Further, in a case such as the one here, the evidence must

show that the defendant knew that cocaine was to be imported. United States v.

Camargo-Vergara, 57 F.3d 993, 1000 (11th Cir. 1995). With these principles in



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hand, we consider the case against Burrows.

       The Government’s case was built principally on the testimony of two of

Burrows’s co-conspirators, Richard Johnson, who like Burrows was a resident of

West End, Grand Bahamas, and Darryl Calloway of Palm Beach, Florida,1 and

several telephone conversations the DEA recorded over Calloway’s telephone

(which the DEA tapped via a court order) between November 4 and 14, 2004,

regarding five kilograms of cocaine that was to be transported by boat from the

Bahamas to Florida. Johnson, Calloway and Jason Martin had been transporting

drugs from the Bahamas to Florida for several years, and Martin, who lived in the

Bahamas and knew Burrows, enlisted him to transport the cocaine aboard his,

Burrows’s, boat. Between November 4 and 14, 2004, the four men – Johnson,

Calloway, Martin and Burrows – engaged in a series of telephone calls and

meetings which culminated in Burrows’s agreement to provide the necessary

transportation.

       On November 13, Burrows left the Bahamas with the cocaine, which

Johnson supplied, and headed to Florida. While en route, Burrows threw the

cocaine overboard when he saw aircraft, which appeared to be on the lookout for

drug smuggling, circling overhead. Thus, when his boat arrived in the Intracoastal


       1
          Johnson and Calloway were charged separately, pled guilty and were serving
substantial prison terms when they testified at Burrows’s trial.

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Waterway just north of the Palm Beach Inlet and U.S. Customs officials boarded

and searched it, no drugs were found.

      After the Government rested its case in chief, Burrows put on a defense,

presenting four witnesses, including himself. He testified that he was a Bahamas

businessman, that he frequently came to Florida on business, and that he was

traveling to Florida for that purpose on November 13. A boatyard owner from

Palm Beach testified that Burrows traveled to the United States regularly to

purchase goods and supplies for his businesses in the Bahamas. Theresa Oliver,

Burrows’s fiancé, and Annamae Burrows, his niece, who were aboard his boat,

corroborated Burrows’s insistence that they were not transporting cocaine to

Florida.

      At best, Burrows’s case set up a swearing match – the Government’s case

against his. As was its province, the jury found the Government’s case compelling

and rejected Burrows’s. It was the jury’s responsibility to make the choice, United

States v. Rodriguez, 218 F.3d 1243, 1245 (11th Cir. 2000); hence, we do not

disturb its verdicts. We proceed instead to Burrows’s appeal of his sentences.

      Burrows argues that the district court erred in three respects in determining

his offense level under the Sentencing Guidelines. The first error consisted of the

court’s refusal to reduce his offense level by two levels under U.S.S.G. § 3B1.2 on



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the theory that he was less culpable than his co-conspirators. To determine

whether a § 3B1.2 reduction applies, a district court first should measure the

defendant’s role against the relevant conduct for which he has been held

accountable. United States v. De Varon, 175 F.3d 930, 940-41 (11th Cir. 1999)

(en banc). In cases where the defendant is a drug courier, relevant factual

considerations include: (1) the amount of drugs; (2) the fair market value of the

drugs; (3) the amount to be paid to the courier; (4) the defendant’s equity interest

in the drugs; (5) the defendant’s role in planning the criminal scheme; and (6) the

defendant’s role in distribution. Id. at 945. The amount of drugs, in particular, is a

material consideration in assessing the defendant’s role, and “may be dispositive –

in and of itself – in the extreme case.” Id. at 943. Further, “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.

      Although, in many cases, this first method of analysis will be dispositive, the

district court also may measure the defendant’s culpability in comparison to that of

other participants in the relevant conduct. Id. at 944-45. Two sub-principles guide

this application of the analysis: (1) the district court should look only to other

participants who are identifiable or discernable from the evidence; and (2) only



                                            5
those participants who were involved in the relevant conduct attributed to the

defendant may be considered. Id. at 944. Further, a defendant whose role in the

relevant conduct was less than that of other participants is not necessarily entitled

to a minor-role reduction, where no participants are minor participants. Id.

      Here, the district court did not clearly err by finding that Burrows was not

entitled to a minor-role reduction since his role in the offense was identical to the

conduct for which he was held accountable, and he did not show that he was

substantially less culpable than the other participants.

      The second error Burrows cites concerns the district court’s enhancement of

his offense level under U.S.S.G. § 2D1.1(b)(2)(B) for the “boat captain” role he

played in the criminal enterprise. That section provides for a two-level

enhancement in a defendant’s offense level “[i]f the defendant unlawfully imported

or exported a controlled substance under circumstances in which . . . the defendant

acted as a pilot, copilot, captain, navigator . . . aboard any craft or vessel carrying a

controlled substance . . . .” U.S.S.G. § 2D1.1(b)(2)(B). “The adjustment in §

2D1.1(b)(2)(B) plainly is to be applied to convictions for conspiracy and attempt,

so long as the necessary factual predicate for the enhancement exists . . . [i]t simply

does not matter whether [the defendant] actually carried the controlled substance;

his conspiring and his attempt to do so warrant the application of the



                                            6
enhancement.” United States v. Rendon, 354 F.3d 1320, 1330 (11th Cir. 2003).

      Burrows says that the boat captain enhancement should not apply to him

because the cocaine never got to the United States. His point lacks merit. A

conspiracy and an attempt to import a controlled substance are sufficient to meet

the requirements for an enhancement under § 2D1.1(b)(2)(B). See United States v.

Rendon, 354 F.3d 1320, 1330 (11th Cir. 2003).

      Burrows’s third assignment of error is that the court erred in enhancing his

offense level for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Under that

section, if the defendant willfully obstructs the administration of justice with

respect to the prosecution of the instant offense, and the obstructive conduct related

to the defendant’s offense of conviction, the district court should increase the

offense level by two levels. U.S.S.G. § 3C1.1. The obstruction of justice

enhancement may be imposed if the defendant “testifies untruthfully concerning a

material fact during the course of judicial proceedings.” United States v. Wallace,

904 F.2d 603, 604 (11th Cir. 1990) (citing U.S.S.G. § 3C1.1, cmt. (n.1)).

      There was sufficient evidence, as discussed above, based on the testimony of

Johnson and Calloway, to support the court’s finding that Burrows’s trial

testimony was untruthful as to various material matters. We therefore find no error

in the enhancement.



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      Having rejected Burrows’s challenges to his sentences, they are due to be

affirmed along with his convictions.

      AFFIRMED.




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