[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 30, 2006
No. 06-10206 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00234-CR-T-17EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAULINO SOLIMAN ARROYO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 30, 2006)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Paulino Soliman Arroyo appeals the 135-month sentences imposed
following his conviction for possession with intent to distribute five or more
kilograms of cocaine while on board a vessel subject to United States jurisdiction,
46 App. U.S.C. §§ 1903(a), (g), 21 U.S.C. § 960(b)(1)(B)(ii), and conspiracy to
possess with intent to distribute five or more kilograms of cocaine while on board a
vessel subject to United States jurisdiction, 46 App. U.S.C. §§ 1903(a), (g), (j),
21 U.S.C. § 960(b)(1)(B)(ii).
Arroyo argues that the district court erred in denying him a minor-role
reduction under U.S.S.G. § 3B1.2(b). Arroyo contends that his role as a mere crew
member was minor compared to that of the major transporters and owners of the
drugs. He asserts that he was simply a “mule” who was limited to transporting the
drugs, and had no decision-making power or input regarding the planning,
supplying, or destination of the drugs.
We review for clear error a district court’s factual determination of a
defendant’s role in the offense. United States v. De Varon , 175 F.3d 930,
937 (11th Cir. 1999) (en banc).
A defendant “who is less culpable than most other participants, but whose
role could not be described as minimal” is entitled to a two-level reduction for his
minor role. U.S.S.G. § 3B1.2(b), comment n.5. The defendant bears the burden of
proving a minor role in the offense by a preponderance of the evidence. De Varon,
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175 F.3d at 939.
To evaluate whether a defendant’s role was minor, a court must engage in a
two-step analysis. First, the court must measure “defendant’s role in the relevant
conduct for which [he] has been held accountable at sentencing.” Id. at 940. Where
the relevant conduct is the same as a defendant’s actual conduct, the defendant
cannot establish 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. In a drug courier-context, “the
amount of drugs imported is a material consideration in assessing a defendant’s
role in [his] relevant conduct.” Id. at 943. The quantity of drugs in the courier’s
possession may be a good indication of the defendant’s role in the offense. Id.
Second, the court should consider the defendant’s “role as compared to that of
other participants in [his] relevant conduct.” Id. at 944.
In denying Arroyo a minor-role reduction, the district court found that
Arroyo’s role was comparable to that of the others named in the conspiracy.
Arroyo was one of four crew members of a go-fast boat that was stopped outside of
the territorial waters of Colombia and was found carrying approximately 4650
pounds of cocaine. Although the district court did not hold Arroyo accountable for
the larger conspiracy, Arroyo provided no evidence that distinguished his
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culpability from that of his fellow crew members.
Upon consideration of the briefs of the parties, and thorough review of the
record, we cannot find that the district court’s determinations were clearly
erroneous. The record supports the district court’s findings that the conduct
attributed to Arroyo was identical to his actual conduct and that he was not
substantially less culpable than the other crew members on the go-fast boat.
Arroyo was held accountable for the quantity of cocaine found on his boat.
Furthermore, the amount of drugs involved in this case indicates that Arroyo’s role
as a crew member was not minor. The district court did not clearly err in denying
Arroyo a minor-role reduction.
AFFIRMED.
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