[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 6, 2005
No. 05-11157
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00109-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR ESTUARDO CRUZ TORRES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 6, 2005)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Cesar Estuardo Cruz Torres (“Torres”) appeals his 97-month sentence for
two drug charges. On appeal, Torres argues that the district court clearly erred by
denying his request for a minor-role reduction pursuant to U.S.S.G. § 3B1.2(b)
(2005). We AFFIRM.
I. BACKGROUND
According to the Presentence Investigation Report, a U.S. Coast Guard team
boarded a fishing vessel, the “El Almirante,” on 7 March 2004, and seized 133
bales of cocaine, weighing 2,629 kilograms. The El Almirante had a four-man
crew and one captain. Torres was one of four crew members aboard the ship. The
El Almirante had obtained the cocaine at sea from another fishing vessel, the “Siete
Mares.” The Coast Guard later intercepted the Siete Mares, which had six
crewmen and a captain, and found traces of cocaine aboard that vessel.
In a two-count indictment, a grand jury charged Torres and other defendants
with: (1) possession with the intent to distribute cocaine, in violation of 46 U.S.C.
app. § 1903(a), (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii), (Count 1); and
(2) conspiracy to possess with intent to distribute cocaine, in violation of 46 U.S.C.
app. § 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii), (Count 2). The district
court accepted Torres’s guilty plea as to Counts 1 and 2.
The probation officer determined that Torres’s base offense level was 38,
pursuant to U.S.S.G. § 2D1.1(c)(1), because the offense involved more than 150
2
kilograms of cocaine. Since Torres met the five criteria set forth in U.S.S.G. §
5C1.2, safety valve, the probation officer reduced his offense level by two,
resulting in an adjusted offense level of 36. No adjustment was given for his role
in the offense. Torres was granted a two-level reduction in his offense level as an
adjustment for his acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a),
and a one-level reduction for assisting the authorities in the investigation of the
offense pursuant to U.S.S.G. § 3E1.1(a) and (b), resulting in a total offense level of
33. Torres had no criminal history points, so he was assigned a criminal history
category of I, resulting in a guideline imprisonment range of 135-168 months.
Torres objected to the officer’s failure to provide a two-level reduction for
having a minor role in the offense, pursuant to U.S.S.G. § 3B1.2(b). According to
Torres, his role in the conspiracy ought to be compared to the roles of higher-level
conspirators involved in planning the importation of cocaine, rather than to his
fellow crew members who were involved only in moving the cocaine between
ships.
At the sentencing hearing, the court overruled Torres’s objection that he was
entitled to a minor role reduction, finding that Torres was being held responsible
only for the quantity of cocaine that was present on the El Almirante and that his
role as one of five crew members on the vessel was not minor in relation to the
3
conduct which was attributed to him. The court also rejected Torres’s argument
that his conduct should be compared to the conduct of unidentified higher-level
conspirators. Pursuant to a motion for downward departure based on defendant’s
substantial assistance to authorities under U.S.S.G. § 5K1.1, the court imposed a
sentence of 97 months.
II. DISCUSSION
On appeal, Torres argues that the sentencing court clearly erred in denying
him a minor role adjustment. Torres claims he is nothing more than a “mule” in
this transaction, and that his actions of moving bales of cocaine from one vessel to
another should be compared to the activities of unidentified higher-level members
who planned the operation, rather than to the conduct of his fellow crew members.
Simply because the conduct of his fellow crew members was no more serious than
his own, Torres argues that he should not be precluded from receiving a minor role
reduction.
A sentencing court’s determination of a defendant’s role in an offense
constitutes a factual finding that is reviewed for clear error. See United States v.
Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant
bears the burden of proving, by a preponderance of the evidence, that he is entitled
4
to a role reduction. See id. at 939.
The Guidelines provide for a four-level reduction for a defendant who acts
as a minimal participant, a two-level reduction for a minor participant, and a three-
level reduction for cases falling in between the minor and minimal level. U.S.S.G.
§ 3B1.2. A minimal participant is a defendant who is “plainly among the least
culpable of those involved in the conduct of a group,” U.S.S.G. § 3B1.2,
comment. (n.4), while a minor participant means any participant “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).
To determine whether a defendant is entitled to a mitigating-role reduction,
the district court must first measure the defendant’s role in the offense against the
relevant conduct for which he has been held accountable. See Rodriguez De
Varon, 175 F.3d at 940. In cases where the defendant is a drug courier, relevant
factual considerations include, but are not limited to: (1) the amount of drugs
involved; (2) the fair market value of the drugs involved; (3) the amount of
compensation received by the courier; (4) the courier’s equity interest in the drugs,
if any; (5) the courier’s role in planning the scheme; and (6) the courier’s role, or
intended role, in the distribution of the drugs. See id. at 945. Second, the court
may compare the defendant’s culpability to that of other participants in the relevant
5
conduct, but “only to the extent that they are identifiable or discernable from the
evidence.” Id. at 944. “The conduct of participants in any larger criminal
conspiracy is irrelevant.” Id.
We conclude that the court did not clearly err by denying Torres’s request
for a minor-role reduction because: (1) it correctly assessed Torres’s role in
connection with the conduct for which he was held accountable, and not in
connection with some larger criminal enterprise; and (2) Torres failed to
demonstrate that he was less culpable than the majority of identifiable participants
in the offense.
III. CONCLUSION
Torres appeals his 97-month sentence for possession with intent to distribute
cocaine and conspiracy to possess and distribute cocaine. As we have explained,
the court did not err when it denied Torres’s request for a minor-role reduction of
his sentence. Accordingly, we AFFIRM.
6