                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                            JULY 21, 2010
                              No. 09-16069                   JOHN LEY
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 09-00030-CR-5-RS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MARIO GONZALES,

                                                          Defendant-Appellant.


                        ________________________

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

                               (July 21, 2010)

Before EDMONDSON, BIRCH and MARTIN, Circuit Judges.

PER CURIAM:

     Mario Gonzales appeals his 51-month sentence, imposed after he pleaded
guilty to one count of conspiracy to distribute and possess with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(C), 846.

       Gonzales argues that the district court abused its discretion when it refused

to adjust his base offense level on the grounds that his role in the conspiracy

underlying his offense was minor or minimal. He contends that he did not

transport or store cocaine, package cocaine for sale, or determine when and where

the cocaine would be delivered. He argues that the district court erred by failing to

consider his actions relative to the entire criminal scheme. For these reasons, he

maintains that he was entitled to a minor or minimal participant role adjustment

under United States Sentencing Guidelines § 3B1.2.1



       1
          Gonzales makes passing reference to the Eighth Amendment but offers no argument
and cites no authority to support the position that the imposed sentence was cruel and unusual.
Thus, Gonzales has abandoned any Eighth Amendment claim. See Doe v. Moore, 410 F.3d
1337, 1349 n.10 (11th Cir. 2005).
        Gonzales’s brief focuses almost exclusively on the district court’s decision not to afford
him a minimal or minor role adjustment. However, in the introduction and conclusion to his
detailed discussion of U.S.S.G. § 3B1.2, he asserts in a conclusory fashion that his sentence was
also unreasonable. Because he fails to directly analyze the procedural and substantive
shortcomings that purportedly made the district court’s sentence unreasonable, Gonzales has
waived these claims. See id. (“On appeal, we require appellants to not only state their
contentions to us, but also to give ‘the reasons for them, with citations to the authorities and parts
of the record on which the appellant relies.’” (quoting Fed. R. App. P. 28(a)(9)(A))). Even if he
has not waived this issue, the sentence is procedurally and substantively reasonable. At
sentencing, the district court’s reference to and discussion of the 18 U.S.C. § 3553(a) factors
were sufficient to assure procedural reasonableness. See United States v. Scott, 426 F.3d 1324,
1329–30 (11th Cir. 2005). Further, the sentence fell at the middle of the Guidelines range and so
we presume it to be substantively reasonable. See United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). Gonzales has not demonstrated that the district court abused its discretion
when it imposed the 51-month sentence.

                                                  2
      A district court’s determination of a defendant’s role in the offense is a

finding of fact that we review for clear error. United States v. Rodriguez De

Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The proponent of the

downward adjustment must prove by a preponderance of the evidence that he is

entitled to a role adjustment. Id. at 939. Because of the “[i]ntensely factual”

nature of this inquiry, id. at 938, “this decision falls within the sound discretion of

the trial court,” id. at 945. Accordingly, “[s]o 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, . . . it will be rare for an appellate court to conclude that the sentencing

court’s determination is clearly erroneous.” Id. (emphasis omitted).

      A district court may reduce a defendant’s base offense level by four points if

the defendant was a minimal participant in the offense or by two levels if the

defendant was a minor participant. United States Sentencing Guidelines § 3B1.2

(Nov. 2008). In determining whether a mitigating role reduction is warranted, a

district court performs a two-prong analysis, examining (1) “the defendant’s role

against the relevant conduct for which [he] has been held accountable,” and (2) the

defendant’s role in comparison to the other participants. Rodriguez De Varon, 175

F.3d at 940. Under the mandatory first prong, “the district court must assess

whether the defendant is a minor or minimal participant in relation to the relevant



                                            3
conduct attributed to the defendant in calculating [his] base offense level.” Id. at

941. The district court must consider all facts probative of the defendant’s role.

Id. at 943. However, a defendant is not entitled to a role adjustment unless he

played a minimal or minor role in the conduct for which he has already been held

accountable, not just a minimal or minor role in a larger conspiracy. Id. at 941–42,

944. As we have noted, “in many cases this method of analysis will be

dispositive.” Id. at 945.

      Under the second prong, the district court may also assess a defendant’s

culpability in comparison to “other participants in the relevant conduct.” Id. at

944. The district court may only consider participants who are “identifiable or

discernable from the evidence” and “who were involved in the relevant conduct

attributed to the defendant.” Id. “The conduct of participants in any larger

criminal conspiracy is irrelevant.” Id. “[A] defendant is not automatically entitled

to a minor role adjustment merely because [he] was somewhat less culpable than

the other discernable participants.” Id. Furthermore, “[t]he fact that a defendant’s

role may be less than that of other participants engaged in the relevant conduct may

not be dispositive of [the] role in the offense, since it is possible that none are

minor or minimal participants.” Id. In order for the defendant to receive a minor

or minimal role adjustment, “the district court must determine that the defendant



                                            4
was less culpable than most other participants in [his] relevant conduct.” Id.

      Here, the relevant conduct attributed to Gonzales was conspiring to

distribute and possess with intent to distribute between 200 and 300 grams of a

mixture and substance containing cocaine. At his plea colloquy, Gonzales

accepted as true the facts set out by the government, including that he purchased

and then distributed cocaine to drug customers in and around Panama City,

Florida. Further, Gonzales conceded at sentencing that he was accountable for the

amount of cocaine calculated by the Presentence Investigation Report—212.62

grams.

      The first prong of the Rodriguez De Varon analysis turns on “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.

Pursuant to the Sentencing Guidelines, one who conspires to distribute or possess

“[a]t least 200 G[rams] but less than 300 G[rams] of Cocaine” is attributed a base

offense level of 20. U.S.S.G. § 2D1.1(c)(10). This was precisely the base offense

level that the district court used to calculate Gonzales’s Guidelines range. Thus,

the conduct for which he was held responsible was identical to his actual conduct.

      Despite this fact, Gonzales argues that the quantity of drugs that he

possessed and distributed was small relative to that possessed and distributed by



                                           5
other members of the conspiracy, and therefore that his role in the conspiracy was

either minimal or minor. We have, however, expressly rejected application of

similar logic when analyzing U.S.S.G. § 3B1.2. See Rodriguez De Varon, 175

F.3d at 941 (“[A U.S.S.G. § 3B1.2] adjustment only makes sense analytically if

the defendant can establish that her role was minor as compared to the relevant

conduct attributed to her. Otherwise, a defendant could argue that her relevant

conduct was narrow for the purpose of calculating base offense level, but was

broad for determining her role in the offense.” (emphasis omitted)); id. at 944

(“Only if the defendant can establish that she played a relatively minor role in the

conduct for which she has already been held accountable—not a minor role in any

larger criminal conspiracy—should the district court grant a downward adjustment

for minor role in the offense.”).

      “[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. Gonzales

admitted to possessing and distributing 212.62 grams of cocaine and his sentencing

range was calculated accordingly. His sentence therefore reflected only that

quantity of cocaine for which he was personally held accountable—not that



                                           6
quantity of cocaine distributed by his co-conspirators. The district court did not

clearly err when it refused to grant Gonzales an adjustment pursuant to U.S.S.G.

§ 3B1.2. See United States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir.

2006) (“The district court did not clearly err in refusing to grant [the defendant] a

minor role reduction. . . . [The defendant] was held accountable for only the drugs

found in the three plastic containers that [he] admitted conspiring to transport to

Atlanta.”).

      Given Gonzales’s failure to carry his burden as to the first Rodriguez De

Varon prong, we need not reach the second prong. Rodriguez De Varon, 175 F.3d

at 945; United States v. Bernal-Benitez, 594 F.3d 1303, 1321 n.25 (11th Cir.

2010). Still, we observe that Gonzales has failed to demonstrate entitlement to a

minimal or minor participant adjustment in light of his culpability relative to other

participants in the relevant conduct. Though Gonzales claims that he was merely a

“facilitator,” not a drug kingpin or even a street-level dealer, he still “played an

important or essential role in [his] relevant conduct,” Rodriguez De Varon, 175

F.3d at 946, namely conspiring to distribute and possess with intent to distribute

200 to 299 grams of cocaine. See id. at 944 (observing that, when evaluating the

second prong, “the district court may consider only those participants who were

involved in the relevant conduct attributed to the defendant” and “[t]he conduct of



                                            7
participants in any larger criminal conspiracy is irrelevant”). Accordingly,

Gonzales did not bear his burden of demonstrating by a preponderance of the

evidence that he “was less culpable than most other participants in [his] relevant

conduct.” Id. The district court’s conclusion that Gonzales’s sentence properly

reflected his culpability is supported by the record and is not clearly erroneous.

      For the foregoing reasons, the district court did not clearly err when it found

that Gonzales did not qualify for a minimal or minor role adjustment pursuant to

U.S.S.G. § 3B1.2.

      AFFIRMED.




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