[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 07, 2010
No. 09-12878 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00062-CR-RLV-2-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FAUSTO GARCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 7, 2010)
Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Fausto Garcia appeals his 92-month sentence for conspiring to possess with
intent to distribute and possessing with intent to distribute methamphetamine and
cocaine. Garcia argues that the court clearly erred when it denied him a minor role
reduction.
The 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” or by
two levels if it finds the defendant was a “minor participant” in the criminal
activity. U.S.S.G § 3B1.2. A minor participant is a defendant “who is less
culpable than most other participants, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2, comment. (n.5). A district court's determination of
whether a defendant qualifies for a minor role adjustment under the Guidelines 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).
In this case, we cannot say the district court clearly erred. The relevant
conduct for which Garcia was held accountable, conspiring to possess with intent
to distribute and possessing with intent to distribute 50 grams or more of
methamphetamine and 500 grams or more of cocaine, was identical to his actual
conduct in the offense. Here the undisputed account in PSI shows that Garcia
transported the drugs to the arranged transaction and then displayed the drugs to a
federal agent. The district court reasonably concluded that Garcia was not
significantly less culpable than others. His active role, as well as the large drug
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amount involved, support the district court's finding that he was not even a minor
participant, let alone a minimal participant. See De Varon 175 F.3d at 943.
AFFIRMED.
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