[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13942 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 5, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00514-TWT-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
TOMAS CISNEROS,
llllllllllllllllllllllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 5, 2011)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Tomas Cisneros appeals from his 210-month total sentence for conspiracy to
distribute at least 5 kilograms of cocaine and 1,000 kilograms of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), (vii), and 846, and conspiracy
to commit money laundering, in violation of 18 U.S.C. § 1956(h). Cisneros argues
on appeal that the court clearly erred in denying his request for a minor-role
reduction, pursuant to U.S.S.G. § 3B1.2, because he was the least culpable in the
conspiracy for which he was held accountable. After through review, we affirm.
We review a district court’s denial of a role reduction for clear error. United
States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir.), cert. denied, 130 S.Ct.
2123 (2010). The defendant bears the burden of establishing his minor role in the
offense by a preponderance of the evidence. Id. When determining a defendant’s
role in the offense, “the district court has considerable discretion in making this
fact-intensive determination.” United States v. Boyd, 291 F.3d 1274, 1277-78 (11th
Cir. 2002). Furthermore, “[i]n making the ultimate determination of the defendant’s
role in the offense, the sentencing judge has no duty to make any specific subsidiary
factual findings.” United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en
banc). “So long as the district court’s decision is supported by the record and the
court clearly resolves any disputed factual issues, a simple statement of the district
court’s conclusion is sufficient.” Id. (emphasis omitted).
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The Sentencing Guidelines provide for a two-level decrease to a sentencing
calculation if a defendant was a minor participant in the criminal activity. U.S.S.G
§ 3B1.2(b). A minor participant is one “who is less culpable than most other
participants, but whose role could not be described as minimal.” Id., comment. (n.5).
Under the De Varon two-prong test, the district court (1) must compare the
defendant’s role in the offense with the relevant conduct for which he has been held
accountable; and (2) the court may compare the defendant’s conduct with that of the
other participants in the relevant conduct. Bernal-Benitez, 594 F.3d at 1320. “The
fact that a defendant’s role may be less than that of other participants engaged in the
relevant conduct may not be dispositive of role in the offense, since it is possible that
none are minor or minimal participants.” De Varon, 175 F.3d at 944.
Since Cisneros relies on the fact that he only delivered drugs and money as
directed by others, it is noteworthy that in De Varon we declined to presume that a
drug courier would either always or never qualify for a minor-role reduction, holding
instead that a “district court must assess all of the facts probative of the defendant’s
role in h[is] relevant conduct in evaluating the defendant’s role in the offense.” Id.
at 942-43. Some relevant factual considerations we identified include (1) amount of
drugs, (2) fair market value of drugs, (3) amount of money to be paid to the courier,
(4) equity interest in the drugs, (5) role in planning the criminal scheme, and (6) role
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in the distribution. Id. at 945. However, this list is not exhaustive, and, ultimately,
the final analysis “falls within the sound discretion of the trial court.” Id.
In this case, the district court did not clearly err in finding that a minor-role
reduction was not warranted for Cisneros, who was a participant “involved in the
loading and unloading of the drugs and money over a lengthy period of time and in
many individual transactions.” Cisneros was held accountable for 9 different drug
drops/money pick-ups over the course of several months, in which he personally
transported 85 kilograms of cocaine and $1.8 million in cash, with another co-
conspirator transporting an additional $550,000. Cisneros’s active role, as well as the
large drug quantity involved, support the district court’s finding that Cisneros was not
a minor participant in his relevant conduct, which is a factual finding left to the sound
discretion of the trial court. See id. at 943, 945. The court also compared Cisneros
to others in the offense, stating that there were participants with a more aggravated
role, but finding that the record did not clearly establish that Cisneros was less
culpable than most of the other participants. The court further noted that it did not
give a minor-role reduction to the truck drivers, and Cisneros’s supervisor,
Arias-Reyes, received a sentence enhancement for his supervisory role. Therefore,
the court’s denial of the minor-role reduction was not clearly erroneous.
AFFIRMED.
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