[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 28, 2006
No. 06-12556 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00517-CR-T-17-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE HENDRICKS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 28, 2006)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Clarence Hendricks appeals his concurrent 135-month sentences for
conspiracy to possess and possession with intent to distribute five or more
kilograms of cocaine while aboard a vessel subject to United States jurisdiction in
violation of 46 U.S.C. §§ 1903(a),(g), and (j), 21 U.S.C. § 960(b)(1)(B)(ii), and 18
U.S.C. § 2. Hendricks argues on appeal that the district court erred in refusing to
grant a minor role reduction, because he was the least culpable among the
participants.
BACKGROUND
Hendricks pled guilty to the two count indictment, admitting that the
government could prove that he was on board a go-fast boat which the Coast Guard
intercepted on November 4, 2005. According to the undisputed facts of the
presentence investigation report (“PSI”), the Coast Guard intercepted the boat at
sea after the crew had attempted evasive maneuvers and had thrown cocaine bales,
nautical charts, a GPS device and personal belongings overboard. After boarding
the boat, the Coast Guard recovered 1,832 kilograms of cocaine. Four people were
on the boat and one of them admitted to being the captain of the vessel. The
captain reported that he had been paid twenty million Columbian pesos and that
each of the crew, including Hendricks, were to be paid ten million Columbian
pesos.
The PSI calculated an total offense level of thirty-three, based on the base
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level offense, the safety valve provision, and a three-level reduction for acceptance
of responsibility and timely notification of intent to plea guilty. With a criminal
history category of I, the advisory guideline range was 135-168 months of
imprisonment. Hendricks objected to the PSI, claiming that he was entitled to at
least a two-level reduction as a minimal or minor participant in the offense. The
district court overruled the objection, and sentenced Hendricks to concurrent
sentences of 135 months.
STANDARD OF REVIEW
We review the district court’s determination of Hendricks’ role in the
offense for clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 937
(11th Cir. 1999)(en banc).
DISCUSSION
Hendricks argues that he is entitled to either a minimal or minor role
reduction under U.S.S.G. § 3B1.2 , because as a crewman he was less culpable
than other participants in the offense. As further support that he had a minor role,
he asserts that (1) he had no interest in the cocaine; (2) he did not organize the
transaction; (3) he did not have knowledge of the scope and nature of the offense;
(4) he had no supervisory or decision-making authority; (5) he had no independent
control over the drugs; and (6) he did not possess a firearm for security or authority
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purposes.
Sentencing courts should consider two elements when determining a
defendant's role in an offense: “first, the defendant's role in the relevant conduct for
which [he] has been held accountable at sentencing, and, second, [his] role as
compared to that of other participants in [his] relevant conduct.” Rodriguez De
Varon, 175 F.3d. at 940. A defendant bears the burden of proving his minor role
by a preponderance of the evidence. Id. at 939. When making the minor-role
determination in a drug case, the sentencing court may consider “the amount of
drugs, fair market value of drugs, amount of money to be paid to the courier,
equity interest in the drugs, role in planning the criminal scheme, and role in the
distribution.” Id. at 945.
Here the court did not clearly err in refusing to grant Hendricks’ a minor role
adjustment. First, Hendricks’ sentence was based only on the relevant conduct for
which he was held accountable at sentencing: the cocaine recovered from the boat
on which he was traveling. The amount of drugs is a material consideration in
determining Hendricks’ role. Id. at 943. Furthermore, although Hendricks has
shown that he played a lesser role than the captain, who received an enhancement
for his conduct, this alone does not entitle him to a minor role reduction based on
the second prong. “The fact that a defendant’s role may be less than that of other
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participants engaged in the relevant conduct may not be dispositive. . . since it is
possible that none are minor or minimal participants.” Id. at 944. Hendricks has
failed to show he was less culpable than most other participants. See U.S.S.G. §
3B1.2, cmt. n.3. Therefore, there was no clear error in the district court's refusal to
apply a minor role reduction in this case, and we affirm.
AFFIRMED.
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