[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10827
January 4, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00437-CR-T-26TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTIAN BALERESO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 4, 2006)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Christian Balereso appeals his 135-month sentence, imposed after he pled
guilty to possession of at least five kilograms of cocaine, with intent to distribute,
while on board a vessel subject to the jurisdiction of the United States, in violation
of 46 U.S.C. app. §§ 1903(a) and (g) and 21 U.S.C. § 960(b)(1)(B)(ii) (Count 1),
and conspiracy to do the same, in violation of 46 U.S.C. app. §§ 1903(a), (g) and
(j) and 21 U.S.C. § 960(b)(1)(B)(ii) (Count 2). On appeal, Balereso argues the
district court erred by finding that he did not qualify for a minor-role adjustment
under U.S.S.G. § 3B1.2 because he was only a “mule” on the vessel and was
unaware of how much cocaine was on the boat, which was loaded before he
boarded. Balereso argues that he was a minor participant when compared with
identifiable co-conspirators, including the buyers and sellers, and that the district
court failed to specifically compare his involvement with that of his co-
conspirators. After careful review, we affirm.
We review a district court’s factual findings regarding a defendant’s role in
the offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). “So long as the basis of the trial court’s decision is supported by
the record and does not involve a misapplication of a rule of law, we believe that it
will be rare for an appellate court to conclude that the sentencing court’s
determination is clearly erroneous.” De Varon, 175 F.3d at 945.
2
The Guidelines provide for a two-level decrease where the defendant was a
minor participant in any criminal activity. See U.S.S.G. § 3B1.2(b). A minor
participant is defined as “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.3). To determine whether the adjustment applies, a district court first
should measure the defendant’s role against the conduct for which he has been held
accountable. See De Varon, 175 F.3d at 934. With regard to drug couriers, this
Court has indicated that its holding in De Varon “[did] not create a presumption
that drug couriers are never minor or minimal participants, any more than that they
are always minor or minimal,” but “[r]ather . . . [established] only that the district
court must assess all of the facts probative of the defendant’s role in [his] relevant
conduct in evaluating the defendant’s role in the offense.” United States v. Boyd,
291 F.3d 1274, 1277 (11th Cir. 2002). In drug courier cases, “the amount of drugs
imported is a material consideration in assessing a defendant’s role in [his] relevant
conduct” and “may be dispositive – in and of itself – in the extreme case.” De
Varon, 175 F.3d at 943.
Second, where there is sufficient evidence, a court also may measure the
defendant’s conduct against that of other participants in the criminal scheme
attributed to the defendant. See id. In making this inquiry, a district court should
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look to other participants only to the extent that they (1) are identifiable or
discernable from the evidence, and (2) were involved in the relevant conduct
attributed to the defendant. See id. at 944 (stating that “[t]he conduct of
participants in any larger criminal conspiracy is irrelevant”). Moreover, “the
amount of drugs imported is a material consideration in assessing a defendant's
role in [his] relevant conduct.” Id. at 943.
Here, the relevant conduct attributed to Balereso at sentencing was the
importation and possession of approximately 1,627 kilograms of cocaine, which
represented the amount of cocaine found on the vessel when it was intercepted
with Balereso onboard. The district court, after analyzing Balereso’s role,
correctly concluded that he played an integral role in the cocaine offenses for
which he was held accountable. See id. at 945. Balereso argues that he was
entitled to a minor-role adjustment because he was unaware of the amount of
cocaine contained in the go-fast boat when it was intercepted by the United States
Coast Guard in the Eastern Pacific Ocean, and that he was a mule whose role was
only to transport the cocaine “from point A to point B.” We disagree. At his plea
colloquy, Balereso admitted that he was found on a vessel with a substantial
amount of cocaine, and that he was transporting that cocaine from one location to
another. Balereso also admitted that he knowingly and intentionally possessed the
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cocaine and intended to distribute it. These activities demonstrate that he
participated in transporting the drugs, that his role was not minor in the relevant
conduct of possession and conspiracy to possess with intent to distribute over five
kilograms of cocaine. See De Varon, 175 F.3d at 944.1
As for De Varon’s second prong, we are unpersuaded by Balereso’s
argument that the district court erred by finding him no less culpable than the other
conspirators. With the possible exception of co-conspirator Jiminez-Biojo, who
claimed that he was the boat’s captain, Balereso’s conduct was identical to that of
his codefendants. The conduct of “the wealthy and powerful buyers and sellers”
referenced in Balereso’s initial brief on appeal is irrelevant, as he is not charged
with a larger conspiracy to import or distribute drugs, and, in any event, these
individuals are not identifiable from the evidence. See De Varon, 175 F.3d at 944.
On this record, the district court did not clearly err in denying Balereso’s
request for a minor-role reduction.2 Accordingly, we affirm his sentence.
1
We are unpersuaded by Balereso’s reliance on the district court’s decision in United
States v. Dorvil, 784 F. Supp. 849 (S.D. Fla. 1991), which was decided prior to our en banc decision
in De Varon clarifying the analysis and applicability of the minor-role reduction. In the instant case,
the district court’s sentencing decision was entirely consistent with our De Varon decision, which
is the controlling law on this point.
2
We also reject Balereso’s suggestion that his sentence was unreasonable, in light of
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621 (2005), and the
factors enumerated in 18 U.S.C. § 3553(a). In this case, the record reflects that the district court
adequately and properly considered the § 3553(a) sentencing factors and the advisory guidelines
range. At the sentencing hearing, the district court heard evidence that Balereso was needed by his
family and that he was remorseful for his crime. Contrary to his assertion on appeal, the court stated
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AFFIRMED.
that it had considered Balereso’s situation and believed that a sentence of 135 months was
appropriate given the crime and his circumstances. Moreover, we conclude the district court’s
consideration of the § 3553(a) factors and the relevant guideline calculation, as well as its
imposition of a 135-month sentence, was reasonable. Notably, Balereso’s sentence was within the
guidelines range. 18 U.S.C. § 3553(a)(4); Booker, 125 S.Ct. at 767. Moreover, the district court
made an accurate computation of the guidelines range, consulted them as advisory, and considered
the other § 3553(a) factors. Indeed, Balereso’s 135-month sentence was at the low end of the
guidelines range. Though he was subject to a statutory mandatory minimum of 120 months’
imprisonment, he qualified for safety-valve protection and the district court therefore could have
imposed a significantly lighter sentence, but did not. The district court stated that 135 months was
reasonable in light of Balereso’s circumstances. We agree.
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