Case: 13-12804 Date Filed: 12/17/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12804
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20580-KMM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO ORTEGA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 17, 2013)
Before WILSON, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Julio Ortega appeals his concurrent thirty-three-month sentences after being
convicted of one count of conspiracy to encourage and induce an alien to enter the
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United States illegally, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv),
1324(a)(1)(A)(v)(I) and six counts of encouraging and inducing aliens to enter the
United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and 18 U.S.C. § 2. On
appeal, Ortega argues that he should have received a two-level downward
adjustment during his sentencing for his minor role in the offense pursuant to
U.S.S.G. § 3B1.2(b).
“[W]hether a defendant qualifies for a minor role adjustment under the
Guidelines is a finding of fact that will be reviewed only for clear error.” United
States v. Rodriguez De Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). The
defendant bears the burden of proving his role in the offense by a preponderance of
the evidence. Id. at 934.
The district court has “considerable discretion” in determining whether
defendant is entitled to a minor role reduction. United States v. Boyd, 291 F.3d
1274, 1277–78 (11th Cir. 2002). In making its decision, “the district court must
measure the defendant’s role against the relevant conduct for which [he] has been
held accountable.” Rodriguez De Varon, 175 F.3d at 940 (emphasis added).
“[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. Additionally, the district
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court may compare the defendant’s culpability “to that of other participants in the
relevant conduct.” Id. at 944. However, the court may only consider other
participants that can be discerned from the evidence and that participated in the
relevant conduct. Id.
Upon review of the record and consideration of the parties’ briefs, we cannot
say that the district court clearly erred when it determined that Ortega did not play
a minor role in the scheme to encourage and induce aliens to enter the United
States. He actively participated in the efforts to bring several aliens to the United
States by aiding them in boarding the vessel that would transport them. In
addition, he advised them of what to say if the vessel was stopped by authorities
and aided in the vessel’s operation. Furthermore, he did not demonstrate that he
was less culpable than his co-conspirator. Therefore, the district court did not
clearly err in denying Ortega a minor-role adjustment. Accordingly, we affirm the
sentences.
AFFIRMED.
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