                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              December 9, 2005
                               No. 05-12181                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 04-00475-CR-T-30-MSS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

WILSON SINISTERRA ASTUDILLO,

                                                          Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________
                            (December 9, 2005)


Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant, was, as the head engineer, one of eight crew members aboard a
fishing vessel the U. S. Navy intercepted outside the Columbian, S.A., fishing

zone. The vessel was carrying 245 bales of cocaine, weighing approximately

5,512 kilograms. Appellant and his fellow crew members were brought to Tampa,

Florida and indicted. Count One of the indictment charged them with conspiracy

to possess with intent to distribute five kilograms or more of cocaine while aboard

a vessel, in violation of 46 App. U.S.C. § 1903(j) and 21 U.S.C. § 960(b)(1)(B)(ii);

Count Two charged them with possession of such quantity of cocaine with intent to

distribute, in violation of 46 App. U.S.C. § 1903(a) and 21 U.S.C. §

960(b)(1)(B)(ii). Appellant pled guilty to both counts, and the district court

sentenced him under the Federal Sentencing Guidelines to concurrent prison terms

of 135 months.1 He now appeals his sentences, asking that we remand his case for

resentencing on two grounds.

       The first ground is that the district court erred in determining the offense

level under the Guidelines; that is, the court should have reduced that level by two

levels under U.S.S.G. § 3B1.2 because he played only a minor role in the criminal

activity. He says that (1) his role was that of the mechanic, (2) he had no

ownership interest in the drugs, (3) he was paid little in comparison to the value of

the drugs, (4) the amount and value of the drugs were substantial, (6) individuals in


       1
          The sentence range prescribed by the Sentencing Guidelines for appellant’s offenses
and his criminal history category of I called for a prison term of 135 to 168 months.

                                               2
addition to the crew participated in the smuggling of the drugs, and (7) he was

merely a pawn in transporting the drugs.

       “This Court has long and repeatedly held that a district court’s determination

of a defendant’s role in the offense is a finding of fact to be reviewed only for clear

error.” 2 United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).

Section 3B1.2 of the Sentencing Guidelines provides for a four-level decrease to a

defendant’s offense level if the defendant was a minimal participant in any

criminal activity and a two-level decrease if the defendant was a minor participant

in any criminal activity. U.S.S.G. § 3B1.2.

       A defendant who is a minimal participant is one who is plainly among the

least culpable of those involved in the conduct of a group. U.S.S.G. § 3B1.2,

comment. (n.4). A defendant is a minor participant if he is less culpable than most

other participants, but whose role cannot be described as minimal. U.S.S.G.

§3B1.2, comment. (n. 3). In determining a defendant’s mitigating role in the

offense, the district court “must measure the defendant’s role against the relevant

conduct for which [he] was held accountable at sentencing ... [and] may also



       2
         In United States v. Booker, 543 U.S. __, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the
Supreme Court excised 18 U.S.C. § 3742(e), which established standards of review on appeal.
However, we have held that pre-Booker standards for reviewing application of the Sentencing
Guidelines still apply, i.e., we review findings of fact for clear error and questions of law de
novo. United States v. Crawford, 407 F.3d 1174, 1177-78 (11th Cir. 2005).

                                                 3
measure the defendant’s role against the other participants ... in the relevant

conduct.” De Varon, 175 F.3d at 945. “The defendant bears the burden of proving

his minor role by a preponderance of the evidence.” United States v. Boyd, 291

F.3d 1274, 1277 (11th Cir. 2002).

      The record in this case supports the district court’s finding that the relevant

conduct attributable to appellant was not minor or minimal. With respect to the

first prong of the DeVaron analysis, the court held appellant accountable only for

the possession of the 5,512 kilograms of cocaine. Therefore, his actual and

relevant conduct were one and the same. Where a drug courier’s relevant conduct

is limited to his own criminal act, a district court may legitimately conclude that

the courier played an important and essential role in that crime. See DeVaron, 175

F.3d at 942-43.

      With respect to the second prong of the DeVaron analysis, there is

insufficient evidence to show that appellant was a minor or minimal participant in

comparison to others. In determining whether a defendant was less culpable than

others, “the district court should look to other participants only to the extent that

they are identifiable or discernible from the evidence.” Id. at 944. Here, the only

persons identifiable from the evidence are appellant and the seven other crew

members of the vessel. He argues that there were other individuals involved, but



                                            4
has proffered no evidence supporting this claim. We have made clear that, “where

the relevant conduct attributed to a defendant is identical to [his] actual conduct,

[he] cannot prove that [he] is entitled to a [mitigating-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, appellant

has provided no evidence that he was less culpable than the other seven crew

members. He claims only that he was a mechanic. However, he has provided no

evidence showing that his responsibilities aboard the vessel were less vital to the

enterprise than those of the other crew members, particularly the four who were

identified as only “crew members.”

       Appellant’s second ground is that his sentence is unreasonable in that the

district court did not adequately consider the sentencing factors set out in 18

U.S.C. § 3553(a). He presented § 3553(a) factors to the court for its consideration,

and concedes that it considered them. He submits, however, that the court failed to

articulate which specific factors it had considered in imposing sentence.

       Following the Supreme Court’s decision in United States v. Booker, 543

U.S. __, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a defendant’s sentence

for reasonableness.3 See United States v. Winingear, 422 F.3d 1241, 1245 (11th


       3
          We note that the government’s argument, that Astudillo’s claim that the district court
failed to properly consider the § 3553(a) factors should be reviewed only for plain error, is

                                                 5
Cir. 2005). The factors set forth in § 3553(a) guide this review. Id. at 1246.

Those factors include: (1) the nature and circumstances of the offense; (2) the

history and characteristics of the defendant; (3) the need for the sentence imposed

to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment; (4) the need to protect the public; and (5) the guideline

range. See 18 U.S.C. § 3553(a).

       The record reflects that the district court properly considered the § 3553(a)

sentencing factors, including the guidelines, in imposing sentence. As noted

above, appellant advised the court that, in imposing sentence, it should consider the

§ 3553(a) sentencing factors. He then requested sentences totaling 60 months’

imprisonment, arguing that specific § 3553(a) factors warranted such a sentence.

The court, in imposing sentence at the low end of the guidelines range, then stated

that it had reviewed the presentence report, the advisory guidelines, and the §

3553(a) sentencing factors. That is sufficient. See United States v. Scott, No.

05-11843, manuscript op. at 12 (11th Cir. Sep. 27, 2005) (holding that district

court’s statement that it had considered § 3553(a) factors alone is sufficient in

post-Booker sentences).


without merit. At sentencing, Astudillo advised the district court to consider the § 3553(a)
sentencing factors and requested a sentence below the guidelines range. Thus, Astudillo
properly preserved his claim that the district court did not properly consider the § 3553(a)
factors. He nevertheless does not prevail under any standard of review.

                                                6
      Additionally, the concurrent sentences of 135 months’ imprisonment are not

unreasonable. These sentences were at the low end of the guidelines range, a range

that took into account appellant’s offense conduct, his personal characteristics and

history, just punishment, and adequate deterrence. See id., No. 05-11843,

manuscript op. at 14. The record reveals nothing to indicate that such sentences

were unreasonable in light of the § 3553(a) factors. Because the sentences can be

affirmed as reasonable on this basis, we need not address the Government’s

argument that an in-range sentence is presumptively reasonable. See Winingear,

422 F.3d at 1246 (noting that this Court need not address the government’s

argument that sentences within the guideline range are per se reasonable where, in

light of the factors outlined in § 3553(a), the sentence was reasonable).

      Appellant’s sentences are

      AFFIRMED.




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