[DO NOT PUBLISH]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. 06-12506 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00116-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUOC CONG LE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 28, 2006)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Quoc Cong Le appeals his 96-month sentence for conspiracy to distribute
and possess with intent to distribute cocaine and 3,4-Methylenedioxy-
methamphetamine (“MDMA”), in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(ii) and (C). Specifically, Le argues that the district court erred in
rejecting his request for a minor-role reduction under U.S.S.G. § 3B1.2.
Following the Supreme Court’s decision in United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court must still
“consult the Guidelines and correctly calculate the range provided by the
Guidelines.” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). In
making this calculation, the district court’s finding concerning the defendant’s role
in the offense is a finding of fact that we review for clear error upon appeal.
United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The
defendant bears the burden of proving his minor role by a preponderance of the
evidence. United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002).
According to U.S.S.G. § 3B1.2, a district court is to decrease a defendant’s
offense level by two levels if it finds that the defendant was a “minor participant”
in the criminal activity. A “minor participant” is a defendant “who is less culpable
than most other participants, but whose role could not be described as minimal.”
Id. at cmt. n.5.
In determining whether a minor-role reduction is warranted, we require the
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district court to “assess whether the defendant is a minor . . . participant in relation
to the relevant conduct attributed to the defendant in calculating [his] base offense
level.” De Varon, 175 F.3d at 941. The purpose of this limitation is to prevent the
defendant from arguing that he deserved a reduction because he played a minor
role in the larger criminal conspiracy of which he was convicted. See id. at 944.
However, there is also the possibility that the conduct attributed to the defendant
for purposes of calculating his base offense level may be less serious than his
actual participation. Id. at 941. Accordingly, “[w]here [the defendant’s] actual
conduct is more serious than [his] base offense level suggests, a defendant will not
be able to meet this burden.” Id. This rule follows from the Sentencing
Guidelines’ acknowledgment that
If a defendant has received a lower offense level by virtue of being
convicted of an offense significantly less serious than warranted by
his actual criminal conduct, a reduction for a mitigating
role . . . ordinarily is not warranted because such defendant is not
substantially less culpable than a defendant whose only conduct
involved the less serious offense.
U.S.S.G. § 3B1.2 cmt. n. 3(B).
In the course of making the above inquiry, the district court may consider
reliable hearsay evidence, especially where the defendant has had the opportunity
to rebut the evidence or generally cast doubt upon its reliability. United States v.
Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005), cert. denied, 126 S.Ct. 1604
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(2006); see United States v. Castellanos, 904 F.2d 1490, 1496 (11th Cir.1990).
Such hearsay is not made unreliable simply by virtue of the source’s “cooperation
with the Government[.]” United States v. Riley, 142 F.3d 1254, 1258 (11th Cir.
1998).
After careful review of the record and the arguments on appeal, we find no
reversible error. The conduct on which the district court calculated Le’s base
offense level included conspiring to distribute 6,000 tablets of MDMA and 30
pounds of marijuana. Specifically, Le provided a safe house for the delivery and
repackaging of these drugs. However, the evidence demonstrates that Le’s
participation was actually broader than this conduct. This evidence includes a
recorded conversation between Le and a co-conspirator in which Le was instructed
to distribute 20 units of cocaine, a co-conspirator’s statement that he bought an
additional 5,000 tablets of MDMA from Le, a co-conspirator’s statement that Le
distributed 4.5 ounces of cocaine, a recorded conversation in which Le asked a co-
conspirator if he had “some stuff on [him]” and asked the co-conspirator to “bring
[him] two,” and a recorded conversation in which a co-conspirator asked Le to
hand over his drug money. Based on this evidence, it is apparent that Le actually
participated in the conspiracy by directly distributing drugs. Accordingly, the
district court did not err in finding that Le was not entitled to a minor-role
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reduction. See De Varon, 175 F.3d at 944; U.S.S.G. § 3B1.2 cmt. n. 3(B).
Furthermore, the district court’s use of hearsay evidence based on statements from
cooperating witnesses in making this finding was not improper. See Cantellano,
430 F.3d at 1146; Riley, 142 F.3d at 1258. These co-conspirators’ statements were
made against their own interest, and Le was given the opportunity to rebut the
statements. See Castellanos, 904 F.2d at 1496.
AFFIRMED.
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