                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                No. 07-13669                     March 25, 2008
                            Non-Argument Calendar              THOMAS K. KAHN
                                                                    CLERK
                          ________________________

                   D. C. Docket No. 07-00061-CR-T-26-MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

HERMINIO CASTRO-PALACIOS,

                                                              Defendant-Appellant.


                          ________________________

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

                                (March 25, 2008)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     After pleading guilty to possession with intent to distribute five kilograms or
more of cocaine while aboard a vessel subject to U.S. jurisdiction and conspiracy

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

a vessel subject to U.S. jurisdiction, Herminio Castro-Palacios appeals the district

court’s imposition of 135-month concurrent sentences. Specifically, Castro-

Palacios argues on appeal that the district court erred in denying him a mitigating-

role reduction because: (a) his role was merely that of a deckhand who was

involved in refueling operations; (b) he had no control over the events that

occurred that day; (c) there was no evidence that he had ever owned, sold, or

otherwise distributed drugs; and (d) he did not actually receive, nor did he believe

that he would share in, any of the drug proceeds. Also, Castro-Palacios contends

that his role as a courier must be viewed in light of the entire drug trafficking

scheme, and that such a role is clearly less culpable than that of other participants

comprising the entire conspiracy.

      The U.S. Sentencing Guidelines permit a court to decrease a defendant’s

offense level by four levels if it finds that the defendant was a “minimal

participant” in the criminal conspiracy, or by two levels if it finds that the

defendant was a “minor participant” in the criminal activity. U.S. Sentencing

Guidelines Manual § 3B1.2(a), (b) (2007). “The proponent of the downward

adjustment . . . always bears the burden of proving a mitigating role in the offense



                                            2
by a preponderance of the evidence.” United States v. Rodriguez De Varon, 175

F.3d 930, 939 (11th Cir. 1999) (en banc). We review the district court’s

interpretation of the Sentencing Guidelines de novo, but we must accept the court’s

factual findings unless they are clearly erroneous. United States v. Jordi, 418 F.3d

1212, 1214 (11th Cir. 2005). Specifically, we review the district court’s

determination of a defendant’s role in the offense only for clear error. See

Rodriguez De Varon, 175 F.3d at 937, 945. “So long as the basis of the trial

court’s decision is supported by the record and does not involve a misapplication

of a rule of law, we believe that it will be rare for an appellate court to conclude

that the sentencing court’s determination is clearly erroneous.” Id. at 945.

       In Rodriguez De Varon, we identified two principles that should inform the

district court’s determination of whether the defendant’s role in an offense entitles

him to a mitigating-role reduction. Id. at 940, 945. First, and most importantly,

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

for which [he] has been held accountable” at sentencing. Id. at 940. That is, “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. Thus, in the drug courier context, a courier “cannot

prove that [he] is entitled to a minor role adjustment simply by pointing to some



                                           3
broader criminal scheme in which [he] was a minor participant but for which [he]

was not held accountable.” Id. Although courier status alone neither precludes nor

establishes minor participation in an offense, “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.

      Second, although we have acknowledged that the first method of analysis

will be dispositive in many cases, the district court may also measure a defendant’s

culpability against that of other participants in a conspiracy. Id. at 945. However,

a district court is limited to considering only those participants who are identifiable

by the evidence and who were involved in the relevant conduct attributed to the

defendant. Id. at 944. “The conduct of participants in any larger criminal

conspiracy is irrelevant.” Id. Furthermore, a defendant is not entitled to a minor-

role reduction merely because he demonstrates that his role in the relevant conduct

was less than that of other identifiable participants; oftentimes, no participants play

a minor role. Id. To receive a mitigating-role reduction, the defendant must prove

that he was substantially less culpable than most other participants in the relevant

conduct. Id.; U.S. Sentencing Guidelines Manual § 3B1.2 cmt. n.3(A) (2007).

      After carefully reviewing the record and considering the parties’ briefs, we



                                           4
discern no reversible error. The relevant conduct for which Castro-Palacios was

held accountable at sentencing only concerned the 2,500 kilograms of cocaine that

ultimately ended up on board a fishing boat, the Don Juan K, along with Castro-

Palacios and the other conspirators. Although the original plan called for

transporting the drugs solely by “go fast” boat without ever storing the drugs

aboard the Don Juan K, the conspirators expected to use the Don Juan K as a

refueling platform manned by Castro-Palacios. Castro-Palacios’s paid role as the

operation’s refueler constitutes an integral part in the conspiracy to possess this

large quantity of drugs with intent to distribute it, and he is no less culpable, let

alone substantially less culpable, than the crew of the “go fast” boat or any other

discernable participants. We may not, as Castro-Palacios urges, compare his role

to that of any individuals involved in a larger drug trafficking conspiracy that

extends beyond this one sizeable shipment. The district court did not clearly err in

denying Castro-Palacios a mitigating-role reduction, and accordingly, we affirm.

      AFFIRMED.1




      1
          Castro-Palacios’s request for oral argument is DENIED.

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